57 So. 741 | Ala. | 1912
Prior to 1850, George Caperton, who owned the north shore land, established a ferry across the Tennessee river where it intersects a public road.. This ferry was operated by George W. Caperton, son of George, for a number of years prior to 1868, when George W. died. After the death of George W., his son Samuel operated the ferry until 1880, when, having acquired the shore land, he conveyed the same and his interest in the ferry to S. C. Norwood, under whom the •defendants claim land and ferry by mesne conveyances. Prior to the purchase by NorAVOod, in, to wit, 1874, he along with several of the descendants of George Caper-ton, signed a paper Avriting the purpose of which was to set apart a small tract upon the north shore as appurtenant to the ferry. The language of the writing also purports an agreement that said ferry, should it not be abolished by laAv, should remain the joint property of the signers and be operated at their joint expense. Among other provisions, some of which need not he stated, was the following: “Margaret C. Hardie being the sole owner of the lands on the S. E. side of said river, at said ferry, and a subscriber hereto, shall also have the same privileges and subject to the same restrictions as other subscribers, heirs at law of George Caper-ton.” This so-called agreement is set out in the hill of complaint as a basis for relief, and it is also averred
So far as complainants’ title to relief is based upon the agreement, though not so phrased in the bill or decree, the relief sought and that granted must have proceeded upon the theory that complainants were entitled to specific performance of a contract the effect of which was that, if any of the OAvners in common should operate the ferry, the rest should have free ferriage.
The right to keep a public ferry for toll is a franchise which cannot be exercised without legislative authority. —Milton v. Haden, 32 Ala. 30, 70 Am. Dec. 523; Tuscaloosa County v. Foster, 132 Ala. 392, 31 South. 587. “As a matter of right, and as incidental to the right of property, any one OAvning lands on both sides of a river could establish a public ferry; but, as it is a matter in Avhich the public is deeply interested, the Legislature has by law taken this right from the citizen, and deposited the power with the court of roads and revenue.”—
Being of opinion that complainants are not entitled to the relief awarded nor any other, the decree will be
Reversed and rendered.