Prosser v. Davis

18 Iowa 367 | Iowa | 1865

Dillon, J.

1. Ferry: riparian owner. The law governing the rights of these parties, is, to a very great extent, settled by the principles announced in the case of Prosser v. Wapello M County, ante, to which we refer.

Aside from the effect of the establishment of the alleged new highway on the land of Prosser, it is clear that he had a right to enjoin Davis from landing upon and operating his ferry, inviting others to travel over and trespass upon the private property of Prosser.

The condition of the record is such that we cannot review' the August decree upon its merits, as the testimony is not properly brought before us. See, in connection with statement, the case of Andersson v. Easton & Son, 16 Iowa, 56, and cases there cited.

Besides, it seems probable, from the uneontroverted facts (aside from the question arising out of the alleged establishing of the highway), that the August decree was right if it was simply intended to restrain Davis from landing his ferry-boat upon the land of Prosser.

The decree is, however, not very clearly worded, and to that extent was properly modified “so as only-to enjoin the defendant from running his ferry and landing his ferryboat upon the real estate of the plaintiff.” That is, he is not enjoined from operating his ferry, provided he can do so without landing upon the real estate of Prosser.”

This brings us to the question, whether the court in other respects properly modified the August decree.

The ground upon which the other modification was asked, was substantially, “that a public road had, since the decree, been laid out over and upon the lands of Prosser, leading to the ferry of Davis.”

The plaintiff claims, that the defendant lands his boat and discharges passengers and teams above the high water line; that his cable is fastened into the plaintiff’s land, and that no road has been established. The defendant denies each of these propositions. If no road has been established (and the record before us in this case does not permit ns to decide that question), we are of opinion, upon the assumption that all of the testimony is before us, that the defendant should be enjoined from running his ferry to or landing upon any part of the plaintiff’s land or the banks thereof. Even if he lands his boat below high water mark, as he claims he does, still there is no exit from or access to the defendant’s ferry without crossing over and trespassing upon the lands of Prosser.

2. - on public highway. But if a road has been established, the -question whether this would give the defendant a right to land with his ferry-boat at the terminus of said road, has been examined in the case of Prosser v. Wapello County, to which we refer without repeating what is there said. If the landing upon such road is above high water mark, the principles established in the case would deny to the defendant the right to use the highway as a place to land and fasten boats, and to receive and land passengers, freight, &c.

■ If the landing upon the highway is on the shore of the river below the high water line, this would, under the decision of McManus v. Carmichael, 3 Iowa, 1, present a new question of much difficulty, and one in relation to which, as it may not arise upon a retrial, we do not express an opinion. Indeed the question, in this aspect of it, has not been argued by counsel, and it would be improper, even if we felt clear upon it, decisively to pronounce upon it at this time.

We may add that there is no proof in the record in relation to the navigability or non-navigability of the Des Moines river in fact; and our attention has not been called to any specific public act or declaration of law in. this regard.

Whether there are such acts or declarations we have not, in the disposition of the case which we have judged best to make, deemed it necessary to ascertain.

It was asserted to be a navigable stream in the case of Steamboat Globe v. Kurtz, 4 G. Greene, 433, but whether upon proof, upon stipulation or concession of counsel, or upon legislative declaration, does not appear. But in the laying down of the legal principles applicable to this and the other case, we have assumed it to be a navigable stream.

Admitting that a road has been established, as claimed by Davis, this alone, as will be seen by reference to thé case of Prosser v. Wapello County, would not justify the modification of the August decree; so far certainly, as to allow the defendant to use the highway above high water mark to land and fasten his boats, and receive and discharge freight and passengers. .

We accordingly reverse the order modifying the decree so far as the modified order allows the defendant “ to land with his ferry-boat upon any highways now established or hereafter to be established over the plaintiff’s land.”

Considering the state of the record and the circumstances of the cause, this reversal is without prejudice to the renewal of the application to modify the August decree, which application shall be heard de .novo upon such testimony as the parties may produce. Meanwhile the August decree is to be and remain in full force.