Board of Supervisors v. McFadden

57 Miss. 618 | Miss. | 1880

George, C. J.,

delivered the opinion of the court.

The board of supervisors of Leake County, made certain orders for the establishment at the expense of the county of a ferry over Pearl River, free to all the citizens of that county. These orders' directed the appropriation for this free ferry of a ferry franchise, owned by the defendant in error, and for that purpose directed the sheriff of the county to summon an inquest to assess the damages which the defendant in error might sustain by reason of the appropriation of his property by the county. The defendant in error sued out an injunction against the execution of these orders of the board of supervisors, which, on final hearing, was made perpetual by the Chancellor. It appeared at the trial that the defendant in error was the owner of both banks of the river, and that he had held and used the franchise of a public ferry for thirty years; that the public road leading to his ferry, on both sides of the river, had been established thirty years ; and that the proposition of the board of • supervisors was to establish a free ferry on the precise spot occupied by his ferry.

We think the Chancellor did right in enjoining the establishment of a free ferry. The defendant in error had enjoyed the franchise of keeping a ferry for thirty years, as his property, without license from the board of supervisors. His franchise had thus become by prescription his absolute property, of which he could not be deprived except by due course of law. It is true that it is within the right of eminent domain residing in the State to appropriate this franchise to the public use by paying the defendant in error the value thereof, but the power to exercise the right has not been granted by the legislature to the board of supervisors. The board may order the appropriation of land' for public roads, and also timber for building or repairing bridges and causeways, but this franchise of the defendant in error is not land or timber, and hence is not within the statute authorizing the appropriation of these kinds of property. The right of the board' to appropriate the franchise is defective on another ground. There is no statute authorizing the board of supervisors to use the money of the county to establish a free ferry. The power granted by the statute to the board of supervisors over ferries is to license and regulate ferries kept by other persons, not to establish them at the expense of the "county.

Decree affirmed.