132 Ala. 392 | Ala. | 1902
— Section 26 of Art. I, constitution of 1868, ordains: “That all navigable waters shall remain forever public highways, free to- the citizens of the State, and of the United States,, without tax, impost or toll imposed; and that no tax, toll, impost or wharf-age shall be demanded or received from the owner of any merchandise or commodity, for the use of the shores, or any wharf erected on the shores, or in or over the waters of any navigable stream, unless the same be expressly authorized by the general assembly.” This ordinance is section 25, Art. I. of the present constitution. By act of assembly, approved December 8th, 1868, “To
Applying the foregoing conclusions of law to the case in hand (a statement of which we leave to the reporter) the conclusion of fact must be that if the defendant made the representations with which the complaint charges him as to his having the exclusive right, franchise or privilege to maintain and operate a ferry at the intersection of the Warrior river and the public road between Tuscaloosa and Eutaw, the fact being-shown beyond controversy that he had no license and had given no bond, such representations were false, unless a ferry franchise may be acquired by prescription, and it be a fact that he had a prescriptive right in the preanises. Upon the issue made by special plea as to .the existence of a right in him by prescription the evidence, to say -the least for plaintiff, -was conflicting; so that the giving of the affirmative charge for the defendant cannot be referable to and justified upon that issue. Recurring to the issue made by a denial of the allegations of the complaint — the general issue — and looking to the evidence shown by the bill of exceptions, which purports to set out all the evidence, we find that there was evidence before the jury tending to establish that the defendant made the representations as laid in one or more of the counts of the complaint, that plaintiff relied upon them and paid $2,500 because of and induced by them, and that they were false. If the representations were as to a matter of fact,- -it is immaterial
Whether a franchise to maintain a ferry may be acquired by prescription need not be decided in this case. The question appears to have been decided both ways in our earlier reports. The writer is inclined to think that such franchise cannot be so acquired. If it may, however, the fact may come in under the general issue in this case. No special plea was necessary.
.Reversed and remanded.