178 Ky. 588 | Ky. Ct. App. | 1918
Opinion op the Court by
Reversing.
Plaintiff, E. E. Burke, brought this suit to enjoin William Layoff, from interfering with his ferry franchise across the Ohio river at Carrsville, in Livingston county, by transporting passengers and freight across the river" within the distance prohibited by law. Defendant pleaded in substance that plaintiff was not the owner of the land on the Kentucky shore and that the order of the county* court granting the franchise was therefore void. This contention was sustained and judgment rendered dismissing the petition. Plaintiff appeals.
The principal question presented is whether a ferry-franchise across the Ohio river may be granted, under-our present statutes, to a person who is not the owner of land on the Kentucky shore. The proper determination, of this question will necessitate a short history of our ferry legislation.
The third constitution of Kentucky provided that the General Assembly- at its first session after the adoption of that instrument, should appoint, not more than three (3) persons learned in law, whose duty it should be “to revise and arrange the statute laws of this Commonwealth, both civil and criminhl, 'so as'to have but one •law on any one subject.” Third constitution, - article
“A ferry shall be established only at the instance and for the benefit of the owner of the land where it is located, or by someone who has obtained from the owner the privilege of using the same for that purpose.”
The applicant is required to give a covenant to the Commomvealth that he will keep the ferry according to law and pay all damages that anyone may sustain by reason of his failure to do so, or by reason of any neglect or misconduct of those managing the ferry, or by reason of the insufficiency of any boat employed thereat. The covenant of the owner of a ferry on the Ohio river must, in addition, promise to pay the owner of any slave any ' damages which he may receive by reason of the illegally transporting or attempting to transport, the slave across ' that river. It is also provided that the surety of the owner of a ferry right on the Ohio river, shall be good for at least $3,000.00, and anywhere else for at least $500.00. Besides four or five other sections relating to... ferries on the Ohio river, the act provided: “No ferry ■ shall be established on the Ohio river within less than a mile and a half nor upon any other stream wtihin less than a mile of the place in a straight line where any existing ferry was pre-established — unless it be in a town, or city, or where an impassable stream intervenes.” Here then we have an act covering the entire subject of ferries, prepared by commissioners, who were authorized to reduce the statute law “so as to have but one law on the same subject,” and adopted by the legislature: Not only so but the Revised Statutes were subsequently revised by the General Statutes, which were adopted by the legislature, acts 1873, chapter 1011, page 53, and the provisions of chapter 39, of the Revised Statute's re-enacted with' certain immaterial changes, General Statutes, chap
In our opinion the evidence was sufficient to show that defendant was interfering with plaintiff’s franchise
. Wherefore the judgment is reversed and cause remanded with directions to grant plaintiff the relief prayed for.