115 P. 284 | Or. | 1911
delivered the opinion of the court.
The plaintiffs here, alleging that they are the owners and operators of a regularly licensed ferry across the Columbia River between Hood River, Oregon, and White Salmon, Washington, bring this suit to enjoin the defendants from maintaining a rival ferry between the same points. The averment of the existence of a duly licensed ferry under the ownership of plaintiffs was denied, and as an essential element of their complaint it became necessary for them to prove it. This involves the regularity of the proceedings of the county court of Wasco County under which the plaintiffs claim.
It is not necessary to consider the question of whether the county court of Wasco County could license a ferry crossing an interstate boundary or any of the other questions in this case. The plaintiffs have failed to establish the essential allegation of their complaint, to wit, the ownership of a duly licensed ferry. The case is within the meaning of State v. Officer, 4 Or. 180, where the defendant was indicted for obstructing a county road, and on a plea of not guilty it was held to be incumbent upon the state to show affirmatively that the county court had jurisdiction of the person and of the subject-matter affected by its proceedings in laying out the county road, and, the record being defective in that respect, no cause of action existed against the defendant for obstructing the supposed highway.
A decree will be entered dismissing the suit.
Keversed: Suit Dismissed.