Hazelip v. Lindsey

| Ky. Ct. App. | Mar 12, 1892

CHIEF JUSTICE HOLT

delivered the opinion of the court.

William Hazelip had a ferry privilege on Green river, the landing being upon his farm, and where a public road crossed the river. He had been in the exercise of the privilege for many years prior to October 10, 1878, at which time he leased it and his farm by written contract to Barrett Lindsey for ten years, from November 1,1888, for one-third of the ferry tolls, and a like proportion of the farm crops, the possession of the farm and ferry and appurtenances to be restored in good condition to Haze-lip at the end of the lease. Shortly after it was made, by agreement between all the parties, the appellee, G. W. Lindsey, took the place of Barrett Lindsey under it, ■•signed it together with the surety and took possession •of the property.

In 1881, Hazelip was about to leave the immediate locality. The ferry license was in his name, and his bond, given in the county court for the proper conduct of the privilege, was in force. He desired to be relieved of the responsibility, and requested the county judge, as the testimony, when all of it is considered, in our opinon •shows, not to revoke his license but to compel his lessee to give a bond.

Section 9, chapter 42 of the General Statutes, provides: ■“ When sale is made of a ferry right or lease thereof, it must be with leave of the court, and the purchaser or lessee must execute covenant, with sufficient surety, in lieu of the former covenant.”

At the March term, 1881, of the county court, and in the absence of Hazelip, the appellee, Lindsey, obtained an order granting him the ferry privilege, as he claims, for twenty years. The order does not specify the period, and the longest time for which it can be granted under the statute is twenty years. It is, however, proven by ■one of the appellee’s sureties in the bond he then gave, and by the county judge, that it was then understood to be for the unexpired time of the lease. The appellee not only paid the one-third of the ferry tolls to Hazelip from the commencement of the lease until this action was taken in the county court, but he voluntarily did so until 1885. This fact is persuasive that he did not regard himself, after March, 1881, as the owner of the ferry right, but merely as a lessee. After 1884 he refused to pay Hazelip the one third of the tolls. The latter sued Mm for them and recovered a judgment. The appellee appealed to the Superior Court and it was affirmed.

Some time after the expiration of the lease, the appellee, claiming the ferry privilege by virtue of the county court order of 1881, brought this action enjoining Haze-lip from exercising the privilege. It is an admitted fact under the pleadings that the grant of license to Hazelip extended beyond the time when this suit was brought. The question, therefore, is whether the order of the county court obtained by the appellee in March, 1881, impliedly revoked the license of Hazelip and vested Lindsey with the right to the privilege, independent of the lease. If he was the owner, then as Hazelip was claiming the same right, it was proper to resort to the remedy of injunction for relief. The right to a ferry privilege is a franchise, and the chancellor may protect the person in possession from repeated disturbance by enjoining the disturber. The injury is a continuing one to a statutory right already granted by the proper tribunal ; and, if this remedy could not be resorted to, a multiplicity of suits would be necessary, which would likely not afford adequate relief. (Livingston v. Van Ingen, 9 John., 585; Wait’s Actions and Defenses, page 348; Newport, &c. v. Taylor’s Ex’rs, 16 B. M., 779.)

It is unnecessary to consider whether the lease of the ferry was void because not made by leave of the county court. The execution of a bond by the appellee in March, 1881, should, perhaps, be regarded as an approval of it by the court, and as the bond of the appellee as a lessee, as provided by the statute. The lease had, however, expired before this suit was brought. It is plain the appellee acquired possession of the ferry under the lease. He admits it. The payment of the one-third of the tolls to Hazelip by him as rent for several years after he obtained the county court order, shows that he still recognized himself as a mere lessee. He now, however, bases his claim of absolute ownership to a ferry, the-landing of which is upon the Hazelip farm, upon that, same order. It is not of a character calculated to enlist the sympathy of a court in his behalf.

It is said the grant to him was by the proper court, and that its validity, therefore, can not be assailed collaterally. Grant that the order means all that is claimed for it. In other words, we will assume that it was intended to grant an original ferry right to the appellee for twenty years, and not merely the right to carry on the ferry as lessee. In such case it is true, if the order be not void, the grant can not be questioned collaterally. (Everston, &c. v. Sanders, 6 J. J. M., 142.)

Hazelip, however, at this time, so far as this record shows, had the privilege. No notice was given to him of the application for this order. In fact, no notice of any character was given. The statute provides: “ No application to establish a ferfy shall be heard, unless notice of the application shall have been posted at the court house door of the county on the first day of the term of the court next preceding that at which the application is made.” (General Statutes, chapter 42, section 5.)

Tbe court, therefore, had no jurisdiction. It is as if a personal judgment were rendered without the service of any process; and the order, if it is to be construed as intending to grant an original ferry right, was void.

The judgment is therefore reversed and cause remanded with directions to dismiss the petition.