27 Ind. 100 | Ind. | 1866
Suit by the appellant against the appellee to enforce the collection of wharfage assessed under an ordinance of the city.
The defendant answered: 1. Dy the general denial. 2. That one Bowman was the original owner of lot number one of the Illinois grant, and laid off the present city of Jeffersonville, and dedicated to public use the wharf ground fronting said city, and where plaintiff’s wharf, named in this action, is located; that he conveyed the ground on which the city stands, including the wharf, to certain trustees, in trust to lay off a town thereon and to sell the lots therein, but in the deed reserved to himself and his heirs all ferry rights and privileges appurtenant to the land; that defendant, at a judicial sale of said ferry rights, made by order of the court below, on a decree against the heirs of Bowman, purchased the ferry rights so reserved, and was
Separate demurrers were filed to the second, third and fourth paragraphs of the answer, which were sustained as to the second and third, and overruled as to the fourth.
The plaintiff replied to the fourth paragraph of the answer by the general denial. Trial by the court; finding for the defendant; motion for a new trial overruled and judgment. The evidence is in the record, and sustains the finding on the issue formed on the fourth paragraph of the answer.
The appellee assigns cross-errors, and complains of the action of the court below in sustaining the demurrers to the second and third paragraphs of the answer.
It is' urged by the appellant that the court below erred in overruling the demurrer to the fourth paragraph of the answer. This presents the question, whether the owner of a
We think the court also erred in sustaining the demurrers to the second and third paragraphs of the answer. A ferry right, like the right to erect and maintain a wharf, has its foundation in the ownership of the soil, or in the exercise of the right of eminent domain. The ferry right includes the right to use the soil for ferry ways. Bowman’s Devisees et al. v. Wathen et al., 2 McLean’s R. 376. The answer shows that the defendant was the owner of the ferry right, in the use of which the claim of wharfage arose. As against the defendant, the city had no right to charge wharfage. The city can maintain its wharf only so far as will not interfere with the franchise of the defendant.
The judgment is reversed, with costs, and the cause remanded, with directions to sustain the demurrer to> the