Tuscaloosa County v. Foster

• Decision Date: 18 February 1902
• Citation: 31 So. 587,132 Ala. 392
• Parties: TUSCALOOSA COUNTY v. FOSTER.
• Court: Alabama Supreme Court

31 So. 587

132 Ala. 392

TUSCALOOSA COUNTY v. FOSTER.

Supreme Court of Alabama

February 18, 1902

Appeal from circuit court, Tuscaloosa county; S. H. Sprott, Judge.

Action by Tuscaloosa county against J. Luther Foster. From a judgment for defendant, plaintiff appeals. Reversed.

This action was brought to recover damages for the alleged deceit practiced by the defendant upon the plaintiff in the sale by the defendant, and the purchase by the plaintiff, of a certain ferry, ferry rights, franchises, and privileges described and known as "Foster's Ferry," in Tuscaloosa county. The complaint contained four counts. In each of these counts it was alleged that, by act of the general assembly, Tuscaloosa county was authorized to build and construct a bridge across the Warrior river at a point on said river where the river was intersected by the public road going from Tuscaloosa to Eutaw, and was further authorized for the purpose of constructing said bridge, to purchase what was known as "Foster's Ferry," which was a ferry operated across the Warrior river at the place where said public road leading from Tuscaloosa to Eutaw intersected the said river. It was then alleged in the complaint that, in pursuance of the authority so granted, the commissioners' court of Tuscaloosa county opened negotiations with the defendant, J. Luther Foster, who professed to be the owner of said ferry, and purchased from him said ferry and four acres of land, paying therefor $2,900; that in the negotiations J Luther Foster represented to the commissioners' court that he was the owner of said ferry, and had the exclusive right to operate said ferry, and that no other person could operate a ferry within two miles thereof along the Warrior river, and that said representations as to the exclusive ownership, right, privilege, and franchise of said J. Luther Foster over said ferry were an inducement to the commissioners' court to pay said Foster the sum of $2,900, which sum was greatly in excess of the value of the property that was really purchased; that the court of county commissioners relied upon this statement of said defendant and that thereby they were induced to pay $2,500 more than the property purchased was really worth, which is the amount sued for in the said action. It was then averred in each of the counts of the complaint that, as a matter of fact, the defendant did not own the right, franchise, or privilege for operating said ferry, and had no license therefor as required by law, and the representations made by him were false and fraudulent, which resulted in damage to the plaintiff to the extent of $2,500, the amount sued for. Each of the counts of the complaint was substantially the same, except that in two of the counts of the complaint it was averred that the representations were made by the defendant knowing that they were false, while the other two did not contain such averments. The defendant filed several special pleas, to which demurrers were interposed. Thereafter the defendant filed three special pleas. The plaintiff's demurrer to the third plea was sustained. The first and second pleas, upon which issue was joined, were as follows: "(1) Comes the defendant, and for a first plea denies that allegation of the complaint. (2) Comes the defendant, and for a second plea says that the plaintiff was not damnified in any sum whatsoever by reason of its said purchase, because he says that he had a prescriptive right to have and operate the said Foster Ferry, for that he and those from whom he acquired said ferry, and the approaches thereto on both sides of the Warrior river, had been in open, exclusive, adverse, and uninterrupted possession and control of said ferry for a period of much more than twenty years prior to the aforesaid sale to the plaintiff, and that defendant and those under whom he claims have for the aforesaid long period of years used and operated the same, as their very own, openly, notoriously, and exclusively and adversely." To the second plea the plaintiff demurred upon the following grounds: "(1) Said plea does not set up any defense other than what could be made under the plea of the general issue. (2) Said plea does not aver facts showing that the defendant had acquired the right to operate said ferry by prescription." This demurrer was overruled, and the trial was had upon issue joined on these pleas. The evidence for the plaintiff tended to show that, in negotiating for the purchase of said ferry, the defendant at various times stated to different members of the court of county commissioners, and also to all of the members in court assembled, that he owned said ferry, and had the exclusive right, privilege, and franchise of operating the same. Two of the members of the court of county commissioners, as witnesses, stated that these inducements by the defendant induced them to make the purchase. It was further shown that the defendant owned the land on either side of the river, and that the four acres which were purchased, together with the ferry, were worth not exceeding $50 an acre. The evidence for the defendant tended to show that he did not make such representations, and never stated that he had the exclusive right and privilege and franchise of operating said ferry. It was further shown by the evidence for the defendant that he purchased the ferry from the heirs of John C. Foster in 1894, and that said ferry had been operated by John C. Foster and his father, from whom he derived it, for 50 or 60 years. It was shown without conflict that the license to operate said ferry had been issued by the court of county commissioners of Tuscaloosa county to John C. Foster on February 11, 1889, and this license gave the privilege of operating said ferry for a term of 10 years, and that after the expiration of 10 years from the issuance of said license no other license had been issued by the court of county commissioners. The deed from the defendant to the plaintiff was executed on May 2, 1899. It was further shown, without conflict, that the defendant had no license, franchise, or charter which authorized him to operate said ferry, and that at the time the defendant sold the property to the plaintiff the license which had previously been issued to John C. Foster had expired. Upon the introduction of all the evidence, the court, at the request of the defendant, gave the general affirmative charge in his favor. Thereupon the plaintiff took a nonsuit, with bill of exceptions. There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the overruling of the demurrer to the defendant's second amended plea, and the giving of the general affirmative charge in favor of the defendant.

Vande Graaff & Verner, for appellant.

Fitts & Fitts, for appellee.

McCLELLAN C.J.

Section 26, art. 1, Const. 1868, ordains "that all navigable waters shall remain forever public highways, free to the citizens of the state, and of the United States, without tax impost or toll imposed; and that no tax, toll, impost, or wharfage shall be demanded or received from the owner of any merchandise or commodity, for the use of the...