3 Barb. Ch. 312 | New York Court of Chancery | 1848
It is admitted that the defendant has not answered the allegation, in the bill, that the license to the defendant, for the skiff ferry, was granted and procured without any notice to either of the complainants. The only question for consideration, therefore, is whether there is any thing in the bill showing that allegation to be material for any of the purposes of the suit. For if notice of the application was not necessary to be given, to the complainants, to render the gianting of the license valid, the allegation that it was granted in fraud
The title of the revised statutes for the regulation of ferries, does not require a notice of the application for a license to be given to all who claim a right to the ferry, nor even to all those who have obtained a license from another court, for a ferry at the same place. All that is required, where the applicant is not the owner of the land through which the highway adjoining to the ferry runs, is that the applicant shall give notice of the application to the owner of such land. Here there is no allegation in the bill that the complainants were the owners of the lands through which the road adjoining the skiff ferry runs, or any part of such lands. The grant from Lansing, to Cushman and Wis-wall, in connection with the north half of lot No. 8, was of the exclusive right which the grantor claimed to keep a ferry. But he did not grant to them the right to go over any other of his lands, for the purpose of enabling them to establish a ferry opposite to such lands.
If the complainants are right in charging that they have the prescriptive and exclusive right to the ferry, independent of their license from the court of common pleas of Albany county, then the license to the defendant is good for nothing; and it is wholly immaterial whether the complainants had or had not notice of the application for it. But if their right depends upon their license exclusively, then they were only entitled to the notice in case they were owners of the lands through which the road to the skiff ferry runs. And I find nothing in this bilMrom which it can be inferred that the complainants were such owners, at the time the license to the defendant was granted. The statute requiring notice, of the application for a ferry license, to be given to the owner of the lands through which the highway adjoining the ferry runs, is probably based upon the supposition that such owner is in fact the owner of the fee of the land over which the highway is laid out. And such is the legal presumption in the present case, in the absence of an}' evidence that the land over which State-street is laid out belongs to the complainants, or to the city of Troy.