Williamson v. Hays.

• Decision Date: 11 April 1885
• Citation: 25 W.Va. 609
• Parties: Williamson v. Hays.
• Court: West Virginia Supreme Court

25 W.Va. 609

Williamson

v.Hays.

Supreme Court of Appeals of West Virginia.

Submitted January 80, 1885.

Decided April 11, 1885.

1. To entitle any person to obtain a writ of error or appeal from a judgment, he must be both a party to the case and be aggrieved by thejudgment. (p. 618.)

2. In proceedings instituted in the county court to establish a ferry or in other cases before the county court, where there are no formal parties defendants, when the proceedings are instituted, the county court ought not to permit any person to be made a party defendant or contestant, so as to give him a right to obtain a writ of error to the judgment of the court, if such person have no interest in the subject-matter before the court except such interest as he has in common with all other members of the community, (p. 615.;

3. The county court should in such cases permit any one to become a contestant and party to the proceeding, so as to give him a right to obtain a writ of error to thejudgment, if such person has a peculiar interest in the controversy different from that of all other members of the community, though this interest be not a vested right, which could be infringed by the judgment of the court, and which might entitle him to pecuniary compensation, (p. 616.)

4. Upon the application of a party to the county court for the establishment of a new ferry across a stream, where there is a ferry already established in close proximity to the site of the proposed ferry, the county court should permit the proprietor of the old ferry to be made a party contestant; and if this be done, such ' proprietor is entitled to apply for a writ of error to thejudgment of the county court establishing the new ferry, (p. 618.)

5. In such a case an important enquiry to be made by the county court before establishing such new ferry is, whether the travel and business across the stream is or is not sufficient to support reasonably well two ferries, as the result of such enquiry must have much weight in determining the question, whether the new ferry should or should not be established, (p. 619.)

Green, Judge, furnishes the following statement of the case:

A. R. Williamson after having posted notice at the front door of the court house of Tyler county and in three other public places in Union district in said county for more than three weeks of his intention so to do made an application in writing to the county court of said county for the establishment of a ferry from Williamson's landing in Union district in said county across the Ohio river to the town of Matamoras, in the State of Ohio. The court on January 16, 1882, appointed three commissioners to view the same and report to the court the advantages and disadvantages, which in their opinion will result as well to individuals as to the public from the proposed ferry, the facts and circumstances that may be useful in enabling the court to determine, whether such ferry ought to be established or not. These commissioners being first sworn reported on February 9, 1882, that they considered the proposed landing as practicable as most other ferrylandings on the Ohio river; that to persons going to Matamoras in Ohio from the country immediately back of this landing, or lying below it further down the river, it would save a distance of one mile and one-third of a mile in going and returning; but that during low water the ferry-boats can not come nearer the West Virginia shore than two hundred yards, though they were told, when this was the case, the river could be forded by a horse. There is a public road running to this landing. The establishment of the ferry would be an advantage to A. R. Williamson and a disadvantage to Alexander Hays, the proprietor of a ferry across the Ohio a short distance above this proposed ferry. They submit with their report a plat of the river and these two ferries and the roads leading to them and of the town of Matamoras on the Ohio river on the Ohio side. By this map it appears, that the town of Matamoras lies between the old or Hays's ferry and the proposed ferry occupying almost the whole distance between them, the old or Hays's ferry near the upper part of the town and the proposed ferry near the lower part of the town. There is a public road running back into the country at right angles to the river from each of these ferrylandings, and a road up and down the river nearly parallel and about a quarter of a mile from it, which intersects these two roads. The road leading to the old or Hays's ferry is known as the Moore road, and the one leading to Williamson's landing the route of the proposed ferry is known as Zion road. From Williamson's proposed landing to the point, where in low water a ferry-boat could come, there is a plank walk some two hundred yards in length.

Alexander Hays, the owner of the upper or old ferry, appeared to oppose the establishment of this ferry; and the case was continued till the July term. At that time the contestant, Alexander Hays, and the applicant, A R, Williamson, each introduced eleven witnesses before the court, who were examined; but their statements I deem it unnecessary to give. After the argument of the case the court rejected the application ot A. R. Williamson. He objected to this judgment and moved for a new trial, which motion the court overruled; and he thereupon took a bill of exceptions, which sets out the statements made by each of the eleven witnesses and then proceeds as follows:

" The. court further certifies that the toll owing facts were in their opinion proven on the trial of said application:

" First. It was proven that the amount of travel coming in on the Zion road and the road leading up the river was greater than the travel coming in on the Moore road and the road leading down the river, and that persons coming in on said first two mentioned roads going to Matamoras would save from one and one-third to one and one-half miles travel in going to and returning from Matamoras by crossing at the proposed ferry instead of Hays's (the ferry already established.)

" Second. It was proven that the ferry already established at Bays-e landing, and owned and conducted by Alexander Hays, was and is abundantly able to accommodate the entire, travelling public wishing to cross the river near Matamoras, and had accommodated the same, when the amount of travel was as large again as it is now; Mr. Hays however stating that on public days he had had sometimes to hire help. And it was also proven that said ferry was well attended and kept.

" Third. It was proven that the passage could be made more quickly at Hays's ferry than at the ferry proposed to be established.

"Fourth. It was proven that at either Hays's landing or Williamson's landing boats could be brought to the roads leading thereto no difference how high the river was.

"Fifth. It was proven that at any stage of low water the shore could be reached and the crossing made without diffi- culty from Hays's landing, and it was also proven that for some time during the summer or fall of 1881 Williamson's landing could not be so reached, but that a board-walk had to be built to the wing-dam some distance out into the river.

" Sixth. It was proven that Hays's ferry was ottener obstructed by ice than the proposed ferry would be, and that during windy weather the water at Hays's ferry was rougher, being deeper than at the proposed terry, but it wras also proven that the weaves were no more dangerous at Hays's ferry during windy weather than at the proposed ferry.

" Whereupon the court gave judgment against the establishment of the aforesaid ferry; and the said A. R. Williamson by his attorney thereupon moved the court to set aside said judgment and grant him a new trial of this cause, on the ground that the same is contrary to the law and the evidence, which motion was overruled by thi3 court; to which opinion of the court in overruling said motion the said A. R. Williamson excepted and tendered this his bill of exceptions, and prays that the same may be signed, sealed and made part of the record in this cause, which is accordingly done.

" F. E. BoYLES, Prcsiiink L. S." John B. Gokkell, CgwV. [L. S.]" These facts were fair deductions from the statements of these eleven witnesses and the report of the commissioners, and they state about all that was proven by this evidence.

From this judgment of the county court A. R. Williamson obtained what is really a writ of error granted upon his petition assigning errors in the record of the county court in this case filed with the petition, which was addressed to the judge of the circuit court of Tyler county. The circuit court of Tyler on the presentation of this petition did on April 15, 1883, grant to said A. R. Williamson what is styled in this order of the court an appeal on his giving a bond as required by law in the penalty of $200.00. On December 6, 1883, the circuit court of Tyler county after hearing the arguments of counsel for appellant Williamson and the contestant Hays, who had been served with notice of this appeal, reversed the judgment of the county court of Tyler and proceeding to make such order, as the county court ought to have made, established the ferry, which the applicant had asked lor and ordered him to keep at the ferry a ferry-boat of specified capacity and two skills and one hand at least to assist him and fixed the rates to be charged for ferrying.

Alexander Hays, the contestant, filed a bill of exception to this ruling of the court, which was signed by the judge; and a writ of error and supersedeas was awarded to him by a a judge ot this Court on February 24, 1884.

W. J. Boreman and J. N. McKnight for plaintiff in error.

Stealeg $ Engle for defendant in error.

Green, Judge:

The first question presented by the record is: Did Alexander Hays have a right to apply for a writ of error to this court from the decision of the circuit court? If he did not have the right, we must quash this writ of error as...