3 Port. 412 | Ala. | 1836
This is a writ of error from the Circuit Court of Talladega County, to a judgment of that Court, refusing to award a peremptory mandamus to the Commissioners of roads and revenue of ¿.aid County, directing them to grant, to the relators, a license for a public ferry, over the Coosa river, at the mouth of the Kernulgee creek, in said county.
The petition is filed in the name of the State, at, the relation of E. M. Driver and others, stating that the petitioners became the owners, in Jan’y, í S34, of a fraction of land, immediately upon the eastern shore of the Coosa river, embracing the eastern bank of said river, to the water’s edge. That there are two public roads passing through said land — the one on the upper, and the other on the lower side of the Kemul-gee or Talladega creek, at its junction with the Coosa, That there is, on the western side of the Coosa, immediately opposite the said roads, on the eastern side of "the river, a public road, called the State road, leading from Tuskaloosa county to said Coosa river. That no license to establish a public ferry lias been granted by the.commissioners’ court of roads 'and revenue of Talladega county, across said river, where said roads meet, nor within two miles thereof. That the public convenience requires the establishment of such a ferry. That the petitioners, as the owners of the land, on the eastern side of the river, are en-
On this petition, the Circuit; court of Talladega county, granted a rule upon the defendants, direct--ing them, either to set aside their said order and grant, the petition, orto show cause for not so doing,, at the May Term, 1835, of said court.
The court of roads and revenue, at the September Term of die circuit, court, for cause, in answer to-the rule, state, that upon the investigation of said application, one Louis S. Tularn, by eertian parol and record testimony, procured by him, from the com-missir,ners of roads and revenue of Shelby county, satisfactorily convinced them,'Unit there was established at said place, for which ihe petitioners had made application, a ferry, which said ferry had re--ceived the sanction of the .legislature of the State of Alabama, and the repeated sanction of the legally constituted authorities of Shelby county. That,
Many points have been ¡nado by the counsel, on each side, which have been very elaborately argued; to which the court has listened, with attention and pleasure.
The first and only one, to which the Court has found it necessary to investigate, is, whether the rela-tors have; in ibeir petition, established a right, in to the thing for which they have applied ? This is an indispensable requisite, in appli-for a mandamus; and without which,.none will be granted.
It. was held in lho case of Dyer vs. The Tuskaloosa Bridge Company,
The only provision applicable to this question, is to he found in the 171 h section of the act. relating to roads, “ when bridges and ferries;
To bring the relators within the provisions of this section, three things, are necessary :• first, 'that they should be the owners of the land, on both sides of the river; second, that their landings should be the most suitable; and third, that no public ferry shall have been established within two miles, by water, of .the place, at which they wish to have theirs established.
In the case before the Court, the petition shows, not only that the relators are not the owners of the soil, on both sides of the river, but that there was, at the time of the application, a ferry already established, by the County Court of roads and revenue, of' the County of Shelby. These two facts being admitted, either of them is decisive of this case.
"Without the ownership of the land, on both sides, the right can not be exclusive in the relators, in any event: and, the existence of the ferry, by order of a Court, having jurisdiction of the subject matter, whether exercised rightfully or not, is fatal to this application. — It involves an investigation of the rights of
There is no prescriptive right to a ferry, in this State — the ownership of the land, on the banks of our navagable streams, gives none. The condemnation of the lands through which a public road may run, under the 2nd section of the act of 1821,
It is contended, by the counsel for the plaintiffs in error, the river being, the dividing line, between the two Counties of Shelby and Talladega, each County has a right to establish a ferry, on its side; and that, in such a case, the prohibition, that no ferry shall be established within, two miles, by water, of another, does not apply.
We can not yield to the force'of this reasoning. The licensing and use of a ferry, necessarily require
We place our decision upon the ground that the relators have not shewn any right to the ferry, under the section alluded to. Whether the return is sufficiently explicit; also, whether the discretion, which is vested in the Court of roads and revenue, (admitting the right to have been made out,) has been exercised : and, whether a writ of error would not be the' proper mode of revisal — are questions, we express .no opinion upon.
Let .the judgment be affirmed.
2 Aik.Dig 353
1 Cranch, 137; 8East,219; 1Wen 318; 3Dal. 42; 3 Bin 273; 5ib 87-6 ib 456; and 556; 4 Bacon 505-1 Yates 46; 2Strau 880
2 Porter's Rep. 303.
Aik. Dig. 363, §27.
Aik. Dig. 359,§13.