Stahl v. Brown

84 Ky. 325 | Ky. Ct. App. | 1886

JUDGE LEWIS

DELIVERED THE OPINION OP THE COURT.

Appellant instituted this action in the Butler Circuit Court to enjoin appellees from operating a ferry across Green river from a point on their land in Ohio county to a point on land relinquished to them for the purpose by the owners in the town of Rochester, Butler county, which was, on their application, established, and the privilege thereof granted to them by an order of the Ohio County Court made September 3, 1883, during a ' regular term.

It is stated in the petition, and may be assumed as true, that many years previous to that date a ferry was duly established by an order 'of the Butler County Court across the same river, in the same counties, and only about 500 yards from the ferry of appellees, and that appellant and those under whom he claims have, in virtue of that order, operated, and yet continue to operate, and to have the ferry privilege so granted.

Upon final hearing, the Butler Circuit Court sustained a demurrer to the petition and amended petition, and rendered judgment dismissing the action.

The decisive and only question we deem it at all necessary to consider on this appeal is whether the Butler Circuit Court has jurisdiction to set aside the order of the Ohio County Court establishing the ferry of appellees, which would be the practical effect of perpetually enjoining the exercise by them of the ferry privilege granted by that order.

By section 1, chapter 42, General Statutes, it is provided that “the several county courts shall have jurisdiction to establish ferries and grant ferry privileges upon any river or stream in or adjoining their respective counties, and for regulating, revoking and controlling the same.”

The statute does not require the issue and service of summons on any party, but under section 5 of that chapter it is sufficient to authorize a county court to hear and determine an application to establish a ferry for notice of the intended application to be posted at the court-house door of the county, on the first day of the next preceding term.

Section 2 is as follows: “An appeal from any order concerning a ferry, or ferry rates, in favor of any one interested, shall lie to the circuit court of the county, and thence to the Court of Appeals, both of which shall have jurisdiction of law and fact; but the Court of Appeals of only such facts as may be certified from the circuit, the appeal to be taken at the time of the making of the order, or during the term, and prosecuted to the circuit court within three years from the making of the order, and to the Court of Appeals within one year from the making of the order of the circuit court.”

As Green river adjoins the county of Ohio, and divides it from Butler at the places where the two ferries have been established, it is clear that the Ohio County Court had jurisdiction to hear the application of appellees, and to establish the ferry, the use and operation of which appellant seeks in this action to enjoin. And as it appears the notice of their application was duly posted by appellees in the time and manner required by the statute, the order of the Ohio County Court must be considered as in full force until reversed and set aside by appeal therefrom as provided in section 2 just quoted. For it is not so provided by the statute, nor do we think it was intended, for an order of a county court establishing a ferry to be set aside except on an appeal. Moreover, being a judicial act, it can not, according to the Civil' Code, be vacated, nor the exercise of the privilege conferred by it be prevented or restrained by an order of injunction issued by another court in an independent and distinct action or proceeding.

In our opinion, the Butler Circuit Court had no jurisdiction to set aside the order of the Ohio County Court, nor in any way to restrain or prevent thé operation of the ferry established thereby, and this action was properly dismissed.

With the policy of the law this court has nothing to do, nor is it necessary to decide whether the order of the Ohio County Court was or not erroneous, for that question could be properly considered only on an appeal therefrom.

Judgment affirmed.