The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1879-02-07
jim MAsoN's PERRY.
Judge JaCkson's Decision Yesterday In
this Notable Case.

: S1ShsVhb uSStSlVh Seotetuty III tl5 CIT
inthe case otthe United States vs.. Jane
: NJ. Mason. 1t covers all the points raise
] in the ease,and WILDE found quite intcrest
. ing;
The United States obtained from thi
Court on the day ofMay, 1873, an orde
granting q temporary injunction, restrain
ing James NJ. Mason from operating fer
ry across the Shenandoah river at Harper
! Ferry, In jefferson county, W. Va. Th,
order was allowed upon the following un
disputed facts set Out in the BILL: ThI
Government purchased in l70B the lane
west ot the river upon which Hal peri
Ferry is now situated, for tho purpose O
establishing an armory at that blaze. and
WHICH II has owned and held down TO this
time. Subsequent to the acquisition o.
this land an armory was established and
the Government continued to use the
property for that purpose until the build.
ings were destroyed during the late civil
war. In 1910 Lord Fairfax being the own.
er In fee Of | ,4U3 acres OF land lying on the
north and east side OF the river, embrac.
ing It's mouth and extending up It,
some two thousand yards or more, applied
to the County Court Of jefferson county,
West Virginia, for an order To establish
Terry across the river from q point on his
land at It's mouth TO the opposite bank,
which was granted and ferry established,
In-lSl3 Fairfax sold and conveyed to the
United States "the perpetual right to cut
and carry away all the trees, timber, woods
and underwoods OF every sort, kind and
determination growing, or thatmight there.
after grow upon 1895 acres Of said land y
which conveyance recites that the Pfesi.
dent Of the- United States, "acting under
certain Acts OF Congress- having before
purchased for the use OF the United States
"slte for an arsenal and manuiactury OF
arms at l1arper's Ferry" did, Sin pursu.
ance and in the further execution OF the
said Acts OF Congress, contract in writing
for the timber therein described by way ol
addition and appnrtenance to that proper.
ty." In 1918 Fairfax conveyed TO the Uni.
ted States In fee simple 6sl acres, the bal.
ance OF the l,463 acres, together with the
ferry, the buildings and every other right,
member and appurtenance TO the premises
hereby conveyed" This sconyeyance gave
the United States the absolute title to the
6S4 acres and the ferry, with all its appur-
tenances.
It isapparent from the recitals OF the first
deed that the timber was necessary for tho
use Of the Government in operating the
Armory. 1t is equally clear from the
second deed that the object and purpose
otthe Government in purchasing the fer
ry franchise, was to secure means OF
transportation across the river. From the
time that this franchise was acquired, the
ferry was owned by the United States,
and operated by their agents down to
1872, when bridge was built across the
river, at or near the ferry, with the con-
sent ol the Government, and which was
destroyed in 1861. After the destruction
ofthe bridge the Government again COM
menced using the ferry, and operated it
during the war as means OF crossing the
river, and so continued to use it until un-
der al act OF Congress passed in 1903, 1t
was sold to Neer & Co., who afterwards
sold it to O'Donnell, the present proprietor,
who holds the equitable title thus derived
from the United States. Upon the lst OF
December, 1877, the defendant, Mason,
became the purchaser OF 1888 acres OF land,
pArt OF the 1895 acre tract, under a decree
oi the Circuit Court OF Jefferson county.
West Virginia, which declared that this
tract was forfeited for the non.payment
OF taxes, "subjeCt, however, TO the per-
petual right to cut timber, in the United
States" In March, 1878, the County Court
OF Jefferson county, upon the application
OF the defendant Mason, established for
him ferry across the Shenandoah Virtu-
ally over theroute known for sixty years
previous as the Fairfax ferry, now operated
and claimed by 0'Donnell. AS before re-
marked these facts arc charged IN the bill
nearly all OF which are conceded. The de.
iendant having filed his answer moves tho
Court to dissolve the Injunction and insists
in support OF his motion: first, that the
ferry known as The Fairfax ferry was es-
tablished across the mouth OF the Shenan-
doah on the 6S.acre tract, and not at the
place now operated by 0'Donnell on the
,S05.ACre tract to which the United States
as the defendant claims have no title. As
10 the question OF fact raised by the de-
iendant as to the exact place where the
ferry was established in 1910, do not re-
gard it Us OF such importance In the dis
Cussion OF the case as to require more
than passing comment. The proof clear
" shows that whilst the ferry was not or.
iginally located Immediately across the
son that the channel and It's
bank did not then admit OF it, vet
It was located there by Fairfax, at the only
place suitable for 1t, and hos ever since
been operated by the Government and its
tenderssubstantially over the route known
rs the Fairfax Ferry. And to-day it ap.
pears from the proofs that there IS but one
place within mile OF the mouth Of the
river, owing to the nature OF the channel,
where ferry can be successfully operat.
ed, aud that is the place whGrethe Fairfax
Ferry was originally established and
where the United States continued to use
and operate It from the date olitS purchase
down to the time they parted with It.
There can be no doubt then as
10 the fact that the location oi
the ferry and the route operated are
the same established and used by Fairfax
nearly 10 years ago. Having disposed OF
the question Of fact, We will now
examine the title upon which the
United States found and assert theil
rights to their ferry franchise and It's ap'
purtenance. Upon this branch OF the case
The hedeiendant insists withmuch confidence
first, that the United States could moi
acquire ferry, because "that species Of
property was not conducive to any OF the
objects for which the general government
was eroated.n This proposition II SOUND
virtually donIlS to the Uuited States the
power 10 furnish Itaplf with means O
transportation OF any oharaOtar whatever
They could not purchase and hold Stsala
boats. railroads, wagons or any otheI
means Of transportation. And yet with
out question tllay have exercised that
powerfrom the organization, Of tho Gov