123 Ky. 103 | Ky. Ct. App. | 1906
Opinion by
Reversing.
Appellant, Anse Warner, and one J. C. Rickards each made application to the Madison county court for a license to operate a ferry across the Kentucky river at Ford, a flourishing village, situated in Clark county. At that point the river constitutes the dividing line between the counties of Madison and Clark, and the operation of the ferry requires, of course, a landing on either side of the river. The land at the point of landing on the Madison side is owned by
The errors assigned are so numerous that we will not undertake to discuss them in detail, but will confine the opinion to such as we think compel us to reverse the judgment appealed from. In addition to the land proposed to be taken for the ferry landing on the Clark county side of the Kentucky river, which is the only feasible or available one at or near Ford, appellee owns and operates a line of booms extending along the river from below its lumber mills, which are situated a short distance down the river from the point of landing, for about a mile east and up the river, and in operating the ferry it will be necessary in order to effect a landing on the Clark county side, to pass through appellee’s boom. We may also add in this connection that the Burt & Brabb Lumber Company owns lumber mills on the Madison county side of the river, that it, too, has a boom, which must also be cut or passed through in operating the ferry, but it is making no complaint. These booms are undoubtedly of great value to the owners, as they are
A ferry is a public, rather than a private right, and has been aptly called a public highway across a stream of water by boat, instead of by bridge. A ferry privilege or franchise carries with it the idea of public service; for the owner or lessee of the franchise must conform to the statutory requirements of giving, bond, operate the ferry according to statutory restrictions, and undertake to serve the public at all reasonable times. The fact that the owner of a ferry franchise may by condemnation acquire a landing and thereby take private property for public use by making just compensation therefor proves that a ferry is more for public than private use. Farnam, Water and Water Rights, vol. 1, pp. 130, 131; Brown v. Given, 4 J. J. Marsh, 30. Though the owner of a ferry, in operating it, performs a public service, with the incidents of monopoly and the right to levy toll, he has no exclusive right to the use of the stream crossed by his ferry. He has the same right to navigate it that every other citizen of the State enjoys, and such right cannot be made subservient to that of riparian owners to maintain booms upon the surface of the stream or near the bank, however necesssary the same may be to their business. We would not be understood as holding that a riparian owner may not have the use of a navigable stream for maintaining booms or pther like appliances for use in business. We only mean to say that the use of a navigable stream for such purposes cannot be exclusive or inconsistent with the public easement. A fair statement of this
In the case at bar the appellant does not propose any other use of the Kentucky river than the navigation of the stream, which is free to him, for operating
We are of the opinion that the testimony as to the injury that will result to appellee’s boom or business from the operation of the ferry was incompetent and should have been excluded. The operation of the ferry will doubtless cause some injury to appellee’s boom, but will not destroy it; for according to the evidence a ferry was for some time maintained at the place in controversy by Richards with appellee’s consent, and it is not to be presumed that the same ferry in the hands of appellant will cause any greater injury to the boom or inconvenience to appellee than when it was under the control of Richards. At any rate, appellee is not entitled to be compensated for such
Appellant’s contention that the authority of the special judge who tried the case ended at the term at which he was appointed by the Governor is without support from the law. The regular judge being disqualified to act, under the specific authority conferred, by his appointment, the special Judge had the right to preside at a subsequent term, and so long as the disability of the regular judge continued. Consequently the trial and decision of the case by him was proper. Duypoyster v. Clarke, Special Judge, 121 Ky. — 90 S. W. 1, 28 Ky. Law Rep., 655.
There are some other errors and irregularities appearing in the record, which, while perhaps not sufficient of themselves to authorize a reversal, should not have occurred; but, as they are not likely to be repeated on a retrial of the case, we deem it unnecessary to pass upon them.
Being'O-f opinion that the damages allowed appellee were excessive and otherwise improper, because predicated upon an erroneous basis, the judgment is reversed, and cause remanded for a new trial and further proceedings consistent with the opinion.