Cox v. Easter

1 Port. 130 | Ala. | 1834

' By Mr. Justice Thornton :

The parties in this cause both applied at the same time to< the court of commissioners of roads and revenue for Limestone county,, for an order to establish a ferry at the same place on Elk river. The order was made in favpr of the defendant in error, and refused to the .plaintiff; whereupon, the latter took a writ of error to this court.

The legislation upon the subject of establishing ferries, is' exceedingly meagre ; but it is apparent that great latitude of discretion is allowed in the matter to the commissioners court. If that discretion had been exercised in this case, and from a consideration of all the circumstances proper to be weighed, the court had determined that the license to the ■defendant in error, would produce the most public benefit* and the least private injury ; a different question from the one now before us, would have been presented. In this record,, the idea is expressly negatived, that any consideration, was? had of those circumstances, relative to public benefit and prr-vate injury, on which the statute evidently contemplates that the adjustment of any such question as may arise upon it, is to rest. The court below decided, that (he certificate of the register of the land office, held by Cox, was illegally granted, so as to include the eastern bank-of the river at the point where it was proposed to establish the ferry ; and on this supposed defect of Cox’s title, is expressly rested the determination of the question. Now it is clear, that the title thu3 acquired and held, is good at least against all the world ex ■ cept the general government.

The decision of the .court below, being evidently founded upon an erroneous supposition, must be reversed, and the matter Remanded,