Knott Bros. v. Jefferson Street Ferry Co.

9 Or. 530 | Or. | 1881

By the Court,

Watson, J.:

The most important question to be determined here, arises upon the construction of the deeds from Stephens and wile to Joseph Knott, of March 25, 1861, and January 22. 1862. What interests did they convey? The arguments of appellants’ counsel are predicated on the assumption that they conveyed all the rights which the grantors had, as riparian owners, to the use of their land for ferry landing purposes. In this, we think, they are clearly wrong. There is but one ferry mentioned in these deeds. The perpetual and exclusive right to the use of the river front for ferry landing places, attempted to be conveyed, is in connection with this particular ferry, and relates to none other. For the purpose of landing and carrying on said ferry, as aforesaid, such landing place or places “ to be at the terminus of some street, or public road created by law, and at no other place.”

This is the very language of these instruments, and leaves no doubt as to the intention of the parties. But it may be said, that, although limited by its connection with a particular ferry, the right was nevertheless intended to be exclusive. Conceding this, then if appellants could avail themselves of its exclusive character for the protection of their interests in that ferry, they must do so by preventing infringements, and not by claiming their benefits. It is quite clear that they derived through these deeds no rights to use any portion of the river front, for landing places, for other ferries than the one specified.

If for any reason they may not be able to enforce the exclusive right intended to be conveyed, by preventing the use of the river front for landings for other ferries which competent authority may deem necessary for the public convenience to establish there, with what appearance of consistency can they claim the distinct right to use it for landings for such other ferries? The legal right to so use it would constitute an easement, separate and distinct from that conferred by the deeds in question, and remained in the grantors after the execution of such deeds. The appellants, therefore, were not the owners of this right, and their case does not come within the principle laid down in Bowman’s Devisee & Burnly v. Walthen, et al., 2 McLean, 376, relied upon by them. That decision,-as we understand it, is to the effect that a statute similar to ours, giving a preference to keep a ferry to the adjoining owner, is based upon the right to use the bank for landing purposes, and designed to protect and secure to such owner the benefit of such right, and that the owner thereof, though it be “ separated from the fee in the soil,” should be deemed the adjoining owner “ within the policy and language of the statute.”

In the case at bar, the appellants not being the owners of any right to use the river bank for a ferry landing in connection with the ferry about to be established, or any other ferry except the one transferred by said deeds, they cannot, under this authority, be deemed adjoining owners, “ within the policy and language ” of our statute, which gives a preference to keep a ferry to the owner of the land embracing or adjoining the lake or stream where the proposed ferry is to be established, if he make proper and reasonable application therefor. (Sec.- 42, chap. 50, Mis. Laws.)

We deem it useless to prolong the discussion of this point, and will now briefly notice some others presénted i'n the argument on behalf of the appellants.

The record discloses the fact that the appellants were the owners of a ferry on the same river, and about half a- mile below the location of the proposed ferry, and that the establishment of the proposed ferry would materially diminish the profits of their business. As this ferry franchise, derived through the Stephens’ charter of 1852, did not, at the date of respondent’s application, have any exclusive privileges attached to it, we cannot perceive how the mere facts of their ownership in a rival ferry, and the consequential damage, which would probably result from a diminution of its profits upon the establishment of another ferry across the same stream, and within such a distance, could give them any standing as parties to the proceeding before the county court, or any right to have the same reviewed for alleged errors by the circuit court. (Price v. Knott, 8 Oregon, 438; Charles River Bridge v. Warren Bridge, 11 Pet., 496; Lawless v. Menefee, 20 Ark., 567; Wiswell v. Wandell, 3 Barb. Ch., 312.)

Their franchise not being coupled with exclusive privileges, was no obstacle in the way of granting licenses by the county court for as many new ferries across the same stream as might become necessary for the public convenience. The grant of a license to keep another ferry, at a different point on the same stream, was no infringement of any right connected with or growing out of their franchise. If the establishment of such other ferry might have the effect, incidentally, of diminishing their profits, this fact could not be considered by the county court in such a proceeding. It would afford no legal ground for refusing the application. It would give them no particular interest in the controversy, recognized by law, to represent which they would be entitled to appear as adversary parties. In contemplation of law they had no particular right or interest which could be infringed by granting the license applied for in pursuance of the statute. Nor is there a single statutory provision which sanctions the idea of their being made parties, under any circumstances, simply on account of their proprietorship in such adjacent ferry. Having no individual right which could be adjudicated in the proceeding, they could not claim, as adversary parties, to question its regularity, as they otherwise might by writ of review, when substantial rights are involved.

Their claim as adjoining owners, based on their title to the tract or block on the north side of U street, is not supported by the facts which appear in the record. This tract was conveyed by Stephens and wife to Joseph Knott, under whom appellants claim title, by metes and bounds, seven years before U street was dedicated by Stephens, and at a time when the dedication of that street could not have been in contemplation of the parties to such conveyance. At least there is nothing in the record to indicate that it was. It would be absurd to conclude, under such circumstances, that it was intended the grantor should take the title to the middle of U street, or that by such subsequent dedication, the title to the centre of the street enured to the owner of this block, whoever he might be. (Peck v. Smith, 1 Conn., 127; Watrous v. Southworth, 4 Conn., 309).

Upon every material point, the conclusion we have reached is adverse to the claim of the appellants. We fail to discover in the record any substantial rights belonging to them, which were involved in the proceeding in the county court, on respondent’s application for a ferry license which was awarded to it. They were therefore not entitled to the remedy by writ of review.

Judgment affirmed.