FERE NATURE. See ANIMALS, §§ 5, 20, 21, 30; WILD ANIMALS. FERMENTATION. Carrier's liability for loss of property by, see ...... CARRIERS, § 513. Special legislation for county tax to pay cost of maintaining, see Tax on, see STATUTES, 165 h. Grant of ferry license by territorial legislature, see TERRITORIES, § 1 e. § 2. What constitutes a ferry. a. A ferry is the right of carrying passengers across streams or bodies of water, or arms of the sea from one point to another for a compensation paid by the way of toll. Futch v. Bohannon, 30 L.R.A. (N.S.) 462, 134 Ga. 313, 67 S. E. 814. b. One employing a flatboat or other means of transporting his employees and teams across a stream to and from his saw mill, who does not transport any part of the public for hire or compensation, is not engaged in operating a ferry. Futch v. Bohannon, 30 L.R.A. (N.S.) 462, 134 Ga. 313, 67 S. E. 814. § 3. Franchise or privilege. dicial purposes. Patterson v. Wollmann, 33 L.R.A. 536, 5 N. D. 608, 67 N. W. 1040. g. A ferry lease for five years, with a privilege of five or ten more years at the option of the licensee, is not in excess of the power to grant a lease for a term not exceeding fifteen years. Nixon v. Reid, 32 L.R.A. 315, 8 S. D. 507, 67 N. W. 57. h. A ferry franchise is not void because the public at the time it is granted may not be able as a matter of legal right to reach the landing places of the ferry on either side of the river. Patterson v. Wollmann, 33 L.R.A. 536, 5 N. D. 608, 67 N. W. 1040. § 4. -public necessity for granting. a. That a proposed ferry might serve well private ends and needs of its projectors, and that the public might be, to some extent convenienced by the proposed ferry, are not controlling considerations. imperative public need must furnish the foundation for granting it a franchise. Egerton v. Flesher, L.R.A.1916D, 828, 76 W. Va. 519, 86 S. E. 34. The b. Upon an application to a county court to establish a ferry, where there are already two ferries serving the same public, the Injunction against violation of, see INJUNC- imperative public need for such additional TION, § 33 b. ferry, and not the private ends of the promoters, or their selfish desires to absorb the business of one or both of the other ferries, should control the sound discretion of the court in refusing or granting such fran chise. Egerton v. Flesher, L.R.A.1916D, 828, 76 W. Va. 519, 86 S. E. 34. a. The state either directly or through its municipalities, may establish and license ferries. Sault Ste. Marie v. International Transit Co. 52 L.R.A. (N.S.) 574, 234 U. S. 333, 58 L. ed. 1337, 34 Sup. Ct. Rep. 826. b. The state may itself operate a public (Annotated) ferry within its borders, or, in the discrec. Where there are already two ferries tion of the legislature, may grant that privi- within a mile of each other, and the ownlege to others on such terms as the legisla-ers of one of them apply for the establishture may impose. Patterson v. Wollmann, 33 L.R.A. 536, 5 N. D. 608, 67 N. W. 1040. c. No one has a right to operate a public ferry for toll without authority from the state. Patterson v. Wollmann, 33 L.R.A. 536, 5 N. D. 608, 67 N. W. 1040. ment of a third one between them, and its establishment will injure the revenue of the other existing ferry, and it does not appear that the travel will well support three ferries, and there is no imperative public need d. The power to grant ferry leases or li-lished. Sistersville Ferry Co. v. Russell, 59 of the third ferry, it should not be estab censes belongs to the police power of the L.R.A. 513, 52 W. Va. 356, 43 S. E. 107. state, and may be exercised upon navigable rivers subject to the power of Congress to Nixon supersede the subordinate control. v Reid, 32 L.R.A. 315, 8 S. D. 507, 67 N. W. 57. e. The right to establish a ferry at a certain place on a river within the jurisdiction of county commissioners may be granted by them so far as their jurisdiction goes, although the opposite side of the river is with in an Indian reservation. Nixon v. Reid, 32 L.R.A. 315, 8 S. D. 507, 67 N. D. 57. (Annotated) d. Public necessity for a third ferry connecting a city with the territory on the opposite side of a river is not shown by evidence that the existing ferry takes care of travel except in the early morning hours, when there is a rush of market gardeners, where no increase in population is shown, no increase in agricultural products, nor any increased use of the existing ferries in recent years, and the income from one f. County commissioners cannot grant a of the existing ferries is shown to be a ferry franchise for a ferry between points moderate income, while the other is less both of which are outside of that county, than necessary to make it a financial suc although one of them is within an unorgan- cess. Egerton V. Flesher, L.R.A.1916D, ized county attached to the former for ju- | 828, 76 W. Va. 519, 86 S. E. 34. § 5. Right of landing. a. A ferry operating across a navigable river between two states by franchise from one of the states, has the right to land at a public wharf in the other state upon the payment of a reasonable wharfage. State v. Faudre, 63 L.R.A. 877, 54 W. Va. 122, 46 S. E. 269. § 6. Proceedings to establish. a. A report of viewers appointed to report upon an application for the establishment of a ferry, signed by two of three viewers, the order of the county court authorizing two to act, is good. "Sistersville Ferry Co. v. Russell, 59 L.R.A. 513, 52 W. Va. 356, 43 S. E. 107. (Annotated) b. Less particularity is required in description of a proposed ferry in the application therefor than in a conveyance, or a summons in unlawful detainer. Sisters ville Ferry Co. v. Russell, 59 L.R.A. 513, 52 W. Va. 356, 43 S. E. 107. c. A sufficient description of a proposed ferry is given in a notice of application therefor and in the application, where it is described to be across the Ohio river, from a point in a certain district of a certain county in West Virginia, on lands belonging to persons named, to such persons landing on the farm of other persons named, in a certain county in the state of Ohio. Sistersville Ferry Co. v. Russell, 59 L.R.A. 513, 52 W. Va. 356, 43 S. E. 107. S. E. 107. d. Ownership of land on the West Vir ginia side of the Ohio river is sufficient to enable the owner to sustain an application to establish a ferry over it, without his showing that he owns land on the Ohio side of the river. Sistersville Ferry Co. v. Russell, 59 L.R.A. 513, 52 W. Va. 356, 43 (Annotated) e. It is no objection to an application for a ferry that it shows that title to the lands at the seat of the ferry is not in all of the applicants but only in some of them Sistersville Ferry Co. v. Russell, 59 L.R.A. 513, 52 W. Va. 356, 43 S. E. 107. § 7. Transfer of. a. An assignment of a ferry lease is not invalid, at least when it is made with consent of the state by its agents. Nixon v. Reid, 32 L.R.A. 315, 8 S. D. 507, 67 N. W. 57. a. A state has the right to grant the exclusive right to ferry from its shores across a navigable river between two states. State v. Faudre, 63 L.R.A. 877, 54 W. Va. 122, 46 S. E. 269. h. A ferry franchise may be and usually is exclusive. Patterson v. Wollmann, 33 L.R.A. 536, 5 N. D. 608, 67 N. W. 1040. for crossing a stream at all times. Warren v. Tanner, 49 L.R.A. 248, 21 Ky. L. Rep. 1678, 56 S. W. 167. d. A ferry license is exclusive of the right to operate any other ferry within the limits prescribed, where the law provides that no other license shall be granted within 2 miles on either side. Nixon v. Reid, 32 L.R.A. 315, 8 S. D. 507, 67 N. W. 57. e. Though the owner of a ferry in operating it performs a public service he has no exclusive right to the use of the stream crossed by his ferry but has the same right to navigate it that every other citizen of the state enjoys. Warner v. Ford Lumber & Mfg. Co. 12 L.R.A. (N.S.) 667, 123 Ky. 103, 92 S. W. 650. § 9. Infringement of franchise. Jurisdiction of injunction against violating exclusive franchise, see COURTS, § 16 w. a. A statute providing for ferries and the payment to towns maintaining them of the compensation fixed for ferriage, includes Protection against wrongful interference 567, 100 Me. 213, 60 Atl. 968. Peru v. Barrett, 70 L.R.A. with ferries. b. The owner of a ferry cannot recover compensation or damages for injury to his dent to the establishment of a second ferry, ferry, flowing from loss of patronage incieither from the owner of the second ferry or the county. Sistersville Ferry Co. v. Russell, 59 L.R.A. 513, 52 W. Va. 356, 43 (Annotated) S. E. 107. has no common-law remedy against those c. In Maine the proprietor of a ferry who, without right, interfere with his profits. Peru v. Barrett, 70 L.R.A. 567, 100 Me. 213, 60 Atl. 968. storehouse on opposite sides of a river, at a d. A merchant maintaining a store and point where a ferry is maintained by anmaintaining row boats, of which he accords other person, infringes the ferry license by his customers free use in the transaction of business with him, where his customers consist of the public generally, and he receives what is a full equivalent for the ferriage in the profits of the sales, and his acts clearly diminish the profits of the ferry. Peru v. Barrett, 70 L.R.A. 567, 100 Me. 213, 60 Atl. 968. e. A ferry established by numerous persons, who buy ferryboats and hire a person to run the ferry within limits for which an exclusive franchise has been granted to another party, violates his exclusive privilege, although their ferry is established exclusively for themselves and their families. Warren v. Tanner, 49 L.R.A. 248, 21 Ky. L. Rep. 1678, 56 S. W. 167. f. The use of a flatboat or other vessel, solely for the purpose of carrying the owner's employees and teams across a stream to and from his sawmill, does not infringe the rights of the owner of a publie ferry, although such rights are exclusive c. The grant of a ferry franchise is an and territorially extend beyond the point exclusive privilege, in order to insure to at which the former keeps and maintains the traveling public ample accommodation his personal conveyance. Futch v. Bohan L.R.A. Comb. Dig.-288. non, 30 L.R.A. (N.S.) 462, 134 Ga. 313, 67 | pel the operation of the ferry. Brownell v. S. E. 814. (Annotated) Old Colony R. Co. 29 L.R.A. 169, 164 Mass. § 11. Time of running. g. The existence of a highway with 29, 41 N. E. 107. which a ferry can connect is not a matter which concerns a person against whom an injunction is sought to prevent his injuring the ferry franchise by a rival ferry. Pat- a terson v. Wollmann, 33 L.R.A. 536, 5 N. D. 608, 67 N. W. 1040. b. A private ferry is mainly for the use of the owner; and though he may take pay for ferriage, he does not follow it as a business. His ferry is not open to the public, at its demand. Futch v. Bohannon, 30 L.R.A. (N.S.) 462, 134 Ga. 313, 67 S. E. 814. c. A railroad company owning a ferry franchise, which runs a ferry as part of its line, cannot, while operating the rest of its line, discontinue the ferry because it is not profitable, and refuse to obey the legislative requirement to operate it. Brownell v. Old Colony R. Co. 29 L.R.A. 169, 164 Mass. 29, 41 N. E. 107. a. A rule not to carry any person across ferry after dark, until daylight, is unreasonable and will not relieve from a statutory penalty for unreasonably detaining any person at a public ferry, where the statutes also require keepers of public ferries to have "safe and convenient boats with a sufficient number of ferrymen." Koretke v. Irwin & Co. 21 L.R.A. 787, 100 Ala. 323, 13 So. 943. § 12. Injuries incident to operation. Defense of ultra vires against liability for negligent injury, see CORPORATIONS, § 104 v. Compensation for interference with booms by operation of, see EMINENT Domain, § 190 d. Municipal liability for injury in operation of, see MUNICIPAL CORPORATIONS, § 213. proximate cause of drowning of horse, see PROXIMATE CAUSE, § 44 b. Obstruction of navigation by, see WATERS, § 63 f. As d. Duty to operate a ferry under a franchise may be specifically enforced by a suit a. The owner of a ferryboat should proin court authorized by statute; and forfei-vide a bar to the driveway strong enough to ture of the charter is not the only remedy. Brownell v. Old Colony R. Co. 29 L.R.A. 169, 164 Mass. 29, 41 N. E. 107. e. Acquiescence by the state in the abandonment of a ferry is not shown by mere failure of officers to take action to compel its operation. Brownell v. Old Colony R. Co. 29 L.R.A. 169, 164 Mass. 29, 41 N. E. 107. f. An order by the court to operate a ferry may be, in the first instance, to provide a suitable ferry, without definitely deciding what kind of a ferry is suitable. Brownell v. Old Colony R. Co. 29 L.R.A. 169, 164 Mass. 29, 41 N. E. 107. g. The enforcement of a penalty due to the state under Mass. Stat. 1894, chap. 392, for failure to operate a ferry, cannot be had in a suit on petition of individuals to com withstand the crowding of a horse when frightened by the usual whistle of a vessel in the locality. Sturgis v. Kountz, 27 L.R.A. 390, 30 Atl. 976, 165 Pa. 358. § 13. Regulation of interstate ferry. a. The state of Ohio has right to establish ferries on the Ohio side of the Ohio river, and to fix their charges for ferriage over that river from Ohio to West Virginia. State v. Faudre, 63 L.R.A. 877, 54 W. Va. 122, 46 S. E. 269. b. West Virginia cannot punish one who acts under a ferry franchise given by the state of Ohio to operate a ferry from its Iside of the Ohio river over that river, for charging one coming from Ohio more than is allowed by West Virginia law for ferriage over that river. State v. Faudre, 63 L.R.A. 877, 54 W. Va. 122, 46 S. E. 269. |