Ferry

A liberty to have a boat upon a river for the transportation of men, horses, and carriages with their contents, for a reasonable toll.

State V. Wilson, 42 Me. 9; State V. Freeholders of Hudson County, 23 N. J. L. 206; Woolr. Ways 217.

The term is also used to designate the place where such liberty is exercised; Chapelle v. Wells, 4 Mart. La. (N. S.) 426. Ferry properly means a place of transit across a river or arm of the sea; but in law it is treated as a franchise, and defined as the exclusive right to carry passengers across a river, or arm of the sea, from one vill to another, or to connect a continuous line of road leading from one township or vill to another. It is not a servitude or easement. It is wholiy unconnected with the ownership or occupation of land, so much so that the owner of the ferry need not have any property in the soil adjacent on either side.

12 O. B. N. S. 32.

In a strict sense a ferry is a continuation of a highway from one side of the water to the other and is for the transportation of passengers, vehicles and other property; Mayor, etc., of New York v. Starln, 106 N. Y. 11, 12 N. B. 631; Broadnax v. Baker, 94 N. C. 676, 55 Am. Rep. 633. A boat equipped with tracks for railroad cars and exclusively used for their transportation as a part of a through railroad line is not an ordinary ferry, but is essentially a part of interstate commerce; St. Clair County v. Transfer Co., 192 U. S. 454, 24 Sup. Ct. 300, 48 L. Ed. 518. The point of departure was held to be the home of the ferry where it crossed the river which was the boundary between Ohio and West Virginia, although the jurisdiction of West Virginia extended to low-water mark on the Ohio side; State v. Faudre, 54 W. Va. 122, 46 S. E. 269, 63 L. R, A. 877, 102 Am. St. Rep. 927, 1 Ann, Cas. 104. An exclusive right of ferry exists where one acquires the sole and exclusive privilege of taking tolls for such service. The element of receiving payment is essential, as one may lawfully transport his own goods in a boat, where an exclusive right of ferry is held by another; Alexandria, W. & K. Ferry Co. v. Wisch, 73 Mo. 655, 39 Am, Rep. 535. In England, ferries are established by royal grant or by prescription, which is an implied grant; in the United States, by legislative authority, exercised either directly or by a delegation of powers to courts, commissioners, or municipalities; Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 7 Pick. (Mass.) 344; id., 11 Pet. (U. S.) 420, 9 L. Ed. 773; Wethersfield v. Humphrey, 20 Conn. 218; Day v. Stetson, 8 Gree^. (Me.) 366; Cloyes v. Keatts, 18 Ark. 19. Without such authority no one, though Stark V. Miller, 8 Mo. 470; Trustees of Schools, V. Tatman, 13 111. 27; Young v. Harrison, 6 Ga. 130; Charles River Bridge v. Warren Bridge, 11 Pet (U. S.) 420, 9 L. Ed. 773; Willes 508; though after twenty -years' uninterrupted use such authority will be presumed to have been granted; Pipkin v. Wynns, 13 N. C. 402; Stark v. Mc Gowen, 1 N. & McC. (S. 0.) 389; Mills v. St Clair Coimty Com’rs, 3 Scam. (111.) 53; Williams V. Turner, 7 Ga. 348; but see Scott v. Wilson, 11 S. W. 303, 10 Ky. L. Rep. 940. The franchise of a ferry will, in preference, be granted to the owner of the soil, but may be granted to another; and by virtue of. the right of eminent domain the soil of another may be condemned to the use of the ferry, upon making Just compensation; 6 B. & C. 703; Allen v. Farnsworth, 6 Yerg. (Tenn.) 189; Sparks v. White, 7 Humph. (Tenn.) 86; Pipkin V. Wynns, 13 N. C. 403; Harrison v. Young, 9 Ga. 359; Harvie v. Cammack, 6 Dana (Ky.) 242; Warner v. Mfg. Co., 123 Ky. 103, 93 S. W. 650, 12 L. R. A. (N. S.) 667; Day v. Stetson, 8 Greenl. (Me.) 365; In re Hanson, 2 Cal. 262. If the termini of the ferry be a highway, the owner of the fee will not be entitled to compensation; 3 Kent 421; Chosen Freeholders of Hudson County V. State, 24 N. J. L. 718; Somerville v. Wlmbish, 7 Gratt (Va.) 205; though in Pennsylvania and other states a different doctrine prevails; Cooper v. Smith, 9 S. & R. (Pa.) 31, 11 Am. Dec. 658; Chess v. Manown, 3 Watts (Pa.) 219; Pearsall v. Post, 20 Wend. (N. Y.) Hi; 4 Am. L. Reg. N. S. 520; Corporation of Memphis v. Overton, 3 Yerg. (Tenn.) 387. See Eminent Domain. One state has the right to establish ferries over a navigable river separating it from another state or from a foreign territory, though Its Jurisdiction may extend only to the middle of such river; and the exercise of this right does not conflict with the provision in the constitution of the United States conferring upon congress the power “to regulate commerce with foreign nations and among the several states,” nor with any law of congress upon that subject; Corporation of Memphis v. Overton, 3 Yerg. (Tenn.) 387; State v. Freeholders of Hudson County, 23 N. J. L. 206; Mills v. County of St. Clair, 2 Gilm. (111.) 197; Tugwell v. Ferry Co., 74 Tex. 480, 9 S. W. 120, 13 S. W. 654. In Conway V. Taylor, 1 Black (U. S.) 603, 17 L. Ed. 191, a ferry francuise on the Ohio was held to be grantable under the laws of Kentucky to a citizen of that state who was a riparian owner on the Kentucky side. It was said not to be necessary to the validity of the grant that the grantee should have the right of landing on the other side.

In Wiggins Ferry Co. v. East St. Louis, 107 U. S. 366, 2 Sup. Ot. 267, 27 L. EJd.

419, a state was held to have the power to impose a license big from a landing in the state passengers and goods across a navigable river to another state, and this was not a regulation of commerce; but a tax upon persons owning and running tow boats from the Oulf of Mexico to New Orleans was held void as a regulation of commerce; iuoran v. New Orleans, 112 U. S. 69, 6 Sup. Ot 38, 28 L. EdL 653. In Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 5 Sup. Ct. 826, 29 L. Ed. 168, Pennsylvania attempted to tax the capital stock of a corporation the business of which was the ferrying of passengers and freight across the Delaware river to New Jersey. The ferry boats were registered in New Jersey and were taxable there. The court held it to be an interference with interstate commerce. In Louisville & J. Ferry Co. V. Kentucky, 188 U. S. 385, 23 Sup. Ct. 463, 47 L. Ed. 513, a Kentucky corporation operating a ferry across the Ohio river was held to be deprived of Its property without due process of law by the action of Kentucky in including for purposes of taxation in the valuation of the franchise derived by the corporation from Kentucky the value of an Indiana franchise for a ferry from the Indiana to the Kentucky shore, which such corporation nad acquired. No portion of the business of a ferry which is part of an interstate railway is under the control of the state; the state authorities have no power to regulate the fares of passengers whether railroad passengers or not; New York Cent. & H. R. R. (JO. V. Board of Freeholders,.227 U. S. 248, 33 Sup. Ct. 269, 67 L. Ed., reversing New York Cent. & H. R. Co. v. Board of Freeholders, 76 N. J. L. 664, 74 Atl. 954, 16 Ann. Cas. 858. The granting of a temporary license to operate a ferry within the city limits, is valid; Carroll v. Campbell, 108 Mo. 550, 17 S. W. 884. A state may at its pleasure erect a new ferry so near an older ferry 'as to impair or destroy the value of the latter by drawing away its custom, unless the older franchise be protected by the terms of its grant; In re Fay, 15 Pick. (Mass.) 243; Carter v. Kalfus, 6 Dana (Ky.) 43; Shorter v. Smith, 9 Ga. 617; West River Bridge Co. v. Dlx, 6 How. (U. S.) 607, 12 L. Ed. 535; Fanning v. Gregoire, 16 How. (U. S.) 524, 14 L. Ed. 1043; Mills v. St Clair County, 2 Gil. (111.) 197; Green v. Ivey, 45 Fla. 338, 33 South. 711; Davis v. Police Jury, 1 La. Ann. 288; Mayor, etc., of City of Columbus V. Rodgers, 10 Ala. 37; Costar v. Brush, 25 Wend. (N. Y.J 628. See Bridgewater Ferry Co. v. Bridge Co., 145 Pa. 4(>4, 22 Atl. 1039; Wheeling & B. Bridge Co. v. Bridge Co., 138 U. S. 287, 11 Sup. Ct 301, 34 L. Ed. 967. A ferry franchise is not infringed by the grant of a bridge franchise, though the bridge diverts the travel from an ancient ferry; [1908] 1 Ch. 41. But If an individual, established, as to draw away the custom of the latter, such individual will be liable to an action on the case for damages, or to a suit In equity for an injunction in favor of the owner of the latter; 6 M. & W. 234; Nixon V. Reid, 8 S. D. 507, 67 N. W, 67, 32