Warner v. Ford Lumber & Mfg. Co.

• Decision Date: 30 May 1906
• Citation: 93 S.W. 650,123 Ky. 103
• Parties: WARNER v. FORD LUMBER & MFG. CO.
• Court: Kentucky Court of Appeals

93 S.W. 650

123 Ky. 103

WARNER v. FORD LUMBER & MFG. CO.

Court of Appeals of Kentucky.

May 30, 1906

Appeal from Circuit Court, Madison County.

"To be officially reported."

Proceedings by Anse Warner against the Ford Lumber & Manufacturing Company to condemn land for a ferry landing. From a judgment awarding damages, plaintiff appeals. Reversed and remanded.

R. W Miller, for appellant.

Pendleton Bush & Bush and J. A. Sullivan, for appellee.

SETTLE J.

Appellant Anse Warner, and one J. C. Richards each made application to the Madison county court for a license to operate a ferry across the Kentucky river at Ford, a flourishing village situated in Clark county. At that point the river constitutes the dividing line between the counties of Madison and Clark, and the operation of the ferry requires, of course, a landing on either side of the river. The land at the point of landing on the Madison side is owned by appellant, and that on the opposite shore, in Clark county, by the appellee, Ford Lumber & Manufacturing Company. Richards had, however, obtained of the latter company a writing granting him the use of its ground for a ferry landing on the Clark side of the river. The contest over the ferry in the Madison county court resulted in the awarding of the privilege by that court to Richards. Appellant immediately took an appeal to the Madison circuit court, and that court upon hearing reversed the judgment of the county court and granted appellant the ferry franchise in question, but held that it would be necessary for him to acquire the ferry landing on the Clark county side of Kentucky river by condemnation, as appellee objected to his use of it for that purpose. To accomplish this object a writ of ad quod damnum was awarded appellant, which issued in the usual form. In the meantime appellee, Ford Lumber & Manufacturing Company, which had all the while been backing Richards in his contest with appellant over the ferry right, applied to the Clark county court for the privilege to operate a ferry at the same place and between the same points on the Kentucky river, and that court, notwithstanding the jurisdiction over the ferry privilege previously acquired, first by the county court, and later the circuit court of Madison county, was proceeding to act upon appellee's application, if not to grant it the ferry privilege, but was prevented from doing so by a writ of prohibition from the Madison circuit court, which upon appeal to this court was sustained by an affirmance of the judgment of the lower court. Clark County Court v. Warner, 116 Ky. 801, 76 S.W. 828. The sheriff of Clark county, to whom the writ of ad quod damnum from the Madison circuit court had been directed, upon receiving it, summoned and duly impaneled a jury made up of citizens and freeholders of Clark county to assess the damages to which appellee would be entitled for the condemnation of a ferry landing for appellant's use on its land in Clark county. The trial under the writ of ad quod damnum was had in the town of Ford, and the jury, after hearing the evidence and argument of counsel, returned a verdict fixing appellee's damages at $21,000. Upon the return of the writ and verdict to the Madison circuit court, appellant filed numerous exceptions to the finding of the jury, and the questions raised thereby were, at the instance of the special judge and by agreement of the parties, tried and determined, not upon bill of exceptions, but upon oral testimony as at the hearing before the sheriff, and the court entered judgment approving the verdict of the jury and confirming their award as to damages. After this action of the lower court appellant filed motion and grounds for a new trial. The motion for a new trial was overruled, to which appellant excepted, and this appeal followed.

The errors assigned are so numerous that we will not undertake to discuss them in detail, but will confine the opinion to such as we think compel us to reverse the judgment appealed from. In addition to the land proposed to be taken for the ferry landing on the Clark county side of the Kentucky river, which is the only feasible or available one at or near Ford appellee owns and operates a line of booms extending along the river from below its lumber mills, which are situated a short distance down the river from the point of landing, for about a mile east and up the river, and in operating the ferry it will be necessary, in order to effect a landing on the Clark county side, to pass through appellee's boom. We may also add in this connection that the Burt & Brabb Lumber Company owns lumber mills on the Madison county side of the river, that it, too, has a boom, which must also be cut or passed through in operating the ferry, but it is making no complaint. These booms are undoubtedly of great value to the owners, as they are used for catching and storing logs which are sawed in the mills; indeed, they are indispensable to the profitable conduct of the lumber milling business. There is no difficulty in arriving at the value of that part of appellee's land which it is proposed to appropriate for a ferry landing. The parties and their witnesses agree that it is worth not less than $25, and certainly not more than $100. It is, however, contended by appellee that, as its deed covering the land in question calls to run with the low water mark on the Kentucky river, its title includes, not only the land bordering on the river, but also the bed of the stream to the main thread of the middle channel, which entitles it to use its bank to the edge of the water and to maintain its boom on the surface of the water, and for these reasons it should, in addition to the value of the land taken, be compensated by appellee for injury to its boom and storage capacity within the boom. Indeed, the greater part of appellee's testimony was in respect to damage of this character. We do not accept this view of the case. The Kentucky river is a navigable stream, and its control as such has been...