Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-02-07

IN august, 4oot, the commissioner
court OF Cooke county established
escond-class public road known as the
Rock Bluff and County Line road. he
northern terminus Of which Is at Rod
river on lnnd owned by appellant Since
the establishment of said road appciee
without any license from the commission
Crs court Of Cooke county, hng been ON.
gagged pm operating ferry across Rcd
river. landing his passengers upon that
part of appellants land condemned for
use as a public road under the laws of
| this state Us aiOpsaid. and appellant in
sttute this suit to enjOiu appellee from
the Use of his land by him for said Dur.
pose. The court below refused the In.
Junction and from this judgment app
pellnnt prosecutes this appeal
This question has been so ably and cx-
huustlvely treated in an opinion delig-
cred by Dillon, Justice, while a member
Of tile supreme court OF Iowa In thu cnse
of PrOsser vs. Wapello county. Is Ia.
VI, hat it would be u waste of time
upon our part to attempt To add anything
90 what Is there said. and we shall content
ourselves with copying at length FROM
that opinion as follows
3 Thtis brings us to the next ques-
ton. aud that is. whether the location
of Il county roud on the land does. to
the extent Of its width ON the bank of
the river, deprive the land owner of his
| riparian rights as above defined
And here we feel compelled to yield
| our doubts 10 the almost Is not quite unit
! form current Of authority, and 30 hold
! that Il does not The argument is this.
BY the location Of the road. the public
acquire simply the right Of way over
| the soil the bare right of passage and It's
| Incidents, nothing moro. CDcuton W..
| Polk county. . Iowa, 5A4: trustees etc.
W. the Auburn etc, H. r. Co., j liill
| n. y. 5OI; Sir John l.adc ". shepherd.
| . Strange. 1901: Mayor etc, vs. Ward
l wills. 40, 1llD
The property or freehold still remains
| in the owner of the land; how completely
| so. the cases last cited. with others there
referred TO. striking illustrate.
This question has arisen in several
cases. aud. among others. in lipkus
VS.. Wynus, before recited - Drew. law 20
| ~ and which ovcrrulcd RDNner ".
| DOwdy. / Murpho 30. Speaking OF
| thi. subject, Henderson, Oh, J" says
"For the use aud purposes of % highway
| Il uhc highway is the sovereign s-the
puhlic's--fo for an other purposes 1t Is the
! former prouriotDr's. The right of using
| IL as a landing place for ferry has new
| or bnav 'ofpn from him and although
| there Is scarcely q porccpublc difference
! between stepping from boat on the
| land aud stepping from land tn l1nd. vet
| thpt has never been taken from tie Tor
|
| lc has npycr been compensated for the
right Omitted as above stutrd % trans
! portivo Versions across the water course
| ns that was not considered when thc
price of taking the land for q highway
! WINS fixed and although II Is ot httle
! value wlthort the irgucmse' YET lh,'
! ownership of the land gives him the pref
| erible right TO call for IN" fronchl .e
| Whom the ferry becomes necessary This
| right rs valuable. for unless there are
| pocd reasons IN the contrary, TIE aover-
| pirn must grant IL To the owner. ns SOW
| crcigns are hound 10 hc just If IT be
! asked what is to be- done " the owner oil
| land where N'fcrry Us necessary, refuses
! Ia receive the franchise, IL is answered
| An npv linn for the land aud grant II
| TO another Let IL not be- taken Tor u
| road aud used as ferry IL was ac-
| cordmgly held that compensation must
| be made to the owner oi the Terry TOT
| the use Of the soil for the ferry right al
! though there II n public rond Leading
TO the river on both sides
| And such Is substantially the decisions
| I'm Tennessee tMcmphis vs.. Overflow q
| Yeri, 3ST.. and IN PENNSYLVANIA Ihus
| In Chambers w. Furey. / leates llt9@l,
| 1G7 II was decided that the Dedication
| ar lnyiug ont of ground as u public rogu
| gn,r mo- right to the defendants, the
| owners of n ferry, 20 land upon or re-
ceiye freight from the plainuhs rec
hold on the banks of q naygabl' river
,,,;t,ovt Iis conaept. That the owner OF
N ferry Inns no right TO land his possen-
| ,,ers or boat ON public highway WIN
| 0ut the consent of the owner OF the soll'
| So, also Cooper vs. Smith, . ). and X,
| al 1En1l not even Nt was held IN u
| subsequent easel at the terminus OF ~
| highway between high and low water
! nlprk. Chess VS.. Nlauoun y watts ~
| 1S3N; aud sec Bird vs. Nlnlln, = Lu.'
! 49J. also the thoroughly consluereu ca,'
of psarsnll W. Post, 20 Wend., lll-l5i
In which the doctrine Of the PennsHl
v1uin eases above cited rs approved
| Ther. H. n dictum contra per Bailey, y"
In peter vs. Kendall, Barn. ~ Crces"
7O3 on. 90, Ma.
noun. above cited, Is recohClln1lr VIZ
| NJ .Nfouus vs. Carmichael. y Iowa. T.
H. question of some difficulty. See on
rbia subject prosscr vs.. Davis mira
Without committing ourselves to- the
ontire correctness Of all the positions
tnl,rn i'm these cases which we nave I'
ferred To nH Illustrating the subject we
feel free in holding: ,., -,
That the dedication or taking OF
land for n public highway docs not, ~
80 n,hcrp The owner retains the fee
and tho Duhlic have only nm easement
Jnn,ivgd such owner of his pretefnbl'
WIN IN n Ferry. if one Is established.
D That a ferry license 10 stranger
win moi authorize him, against the con-
sput of the owner, or without 'o'hPthi
sating him therefor, To use the t'rhiiGi,
of such highway, certainly above hlEu
water mark. (see on tins point roH'v.
Va Davis. infrnl, for the purpose o'
| fIstenipg boats and of receiving ana ,ls
charging freight and passengers Nu'h J
nsc rs not a public use. 80 murh ~
\. , usc nv the licensee or holder oi the
franchise Tor his own gain and odNuh
togr Like the use of an ordinary f9uO
Tor railroad proposes, su'h u , VIZ iJ' ,,,r
ry purposes would be an aduillohul pul
don or serytude for which conipenSuuol
must bp made 20 the owner MlipGrn ~ Va
Cedar Rapids. etc. - Iowa. 10 -''
Isnrribly illustrative of this question: ~
Nabou Vs. n. II. Co., "a n - n9e
Cornenter VS.. X. Il. Co, - ld %
Wngpr As. II. r. Co., 20 w., 90; DIS
selI ~ New York Central Railway Goui
many. % Id. o.; FLETCHER vs. Aupu ~
pnJ Svrncusc Railway company -
Wend.. 4G2; Davis vs.. MAYOR, ~ y. -, l.
516. Williams W.. New 19rA ,ehl lu
Rnilway company. lG Ia, 9t-lun' review
Inc Chief Justice Gibson's opinion C9h'Ia
I'm Philadelphia ". II, X. Co., W harL
G5. aud See where owner parts WIN zee
Ailrirh vs. VINTAGE, 5 Dana llNy'l
ISL. rs \. ". 81, arguendo, Wage, vs.
Troy Union Railroad company - N"N
W. "gi', was apuroyed by lhl