The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1894-04-25

lICkeh or glNo tneM any nuultlonal i0Fcc
or validity. In other words tho act OF
the general assembly OF Virginia con.
feEEed upon the plaintiff q mere power
to purchase or acquire and nothing
more. Consequently, the plaintiff upon
tho exercises OF this power became the
owner OF q ferry with such rights aud
privileges, duties and obligations, and
only such as wero incident 10 tho former
ownership thereof.
The ferry in question was established
BY an act OF the general assembly OF
Virginia, passed January 10, 1900. which
authorized n ferry 10 BIO constantly kept
from the land Of benezer Zane. in the
county OF Ohio, across Ohio river, op-
posite 10 Wheeling Island" but neither
in this act nor in any subsequent act
passed by the general assembly OF Nir-
GINA or by the legislature OF West Nr-
ginia was there conferred upon the
owners Of that ferry m exclusive right
such as is c%ontended for by the plaintiff.
Concedinc, however, for the purposes
OF this decision that the plaintiff did &c
quire by its purchase aforesaid, tho ex-
elusive right it claims, aud.it must still
be held that the plaintiff is not entitled
to the aid OF n court OF equity TO prevent
the defendant from invading that right.
In Trent VS.. Bridge Co. II. Leigh l2l,
under the provisions OF sections y and
"a OF chapter 2S7 OF the revised code,
which are substantially the same as sec.
ton l Of chapter A OF the code OF West
Virginia, it was held, ''If q public ferry
has been disused for more than three
years, though the franchise OF the ferry
owner has not been declared forfeited
on quo warranto or other like proceed
iugs, he is not entitled to the aid OF 4
court OF equity TO prevent others from
invading the franchise which no has
abandoned by noa-user under the
statute"
In the case under consideration, the
ferry franchise has been disused for
several times three years.
SeconG-The plaintiff claims that the
defendant is operating its ferry without
having acquired the right to 90 so. And
in this connection it insists that so
much OF defendants charter as pre-.
tends to authorize the operation OF q
ferry between Wheeling Island and the
east bank OF the Ohio river, in the city
OF Wheeling, is wholly void, there being
no authority OF law ios the secretary OF
state 10 grant 4 charter for any such
purpose, and no authority upon the
part OF the board OF commissioners, or
any other tribunal within this state, to
authorize or license any corporation 70
operate a ferry upoa the waters OF q
state.
Chapter 81, section ., sub-sectionI0.
OF the code provides that q corporation
may be formed for "any other purpose
or business useiul TO the public for
which 4 firm or co2artne,ship may law
fully be formed in this state"
The mere reading Of this section, it
seems to me, is OF itself q full and CON-
plete answer 10 plaintiffs contention
that there is no authority OF law for the
secretary OF state 10 grant . charter for
ferry purposes; but section 6 OF chapter
II OF the code, in express terms, recog-
nizes the fact tina. o ferry company may
be incorporated. The secretary OF state,
therefore, having authority 10 incos-
porate the defendant, the board OF CON-
%missioners Of this county had authority
20 license it TO operate a Jerry. See
chapter II, section 6, OF the code, and
chapter IS. subsection IS.
1hirG-The city OF Wheeling, on the
Goth OF October, 1873, filed a petition in
this court for the condemnation OF land
Tor the purpose OF extending Ohio
street: eastwardly from South Front
stree. 10 the Ohio river. In this pro-
cseding Daniel F. Zane and others. the
devisees and heirs =: law OF the said
Daniel :. Zane, who had meanwhile
died, we've msde defendants, and such
proceedings were had that on the 10th
day OF January, 1876, the report OF The
commissioners 10 assess damages was
confirmed, and Isaac Irwin was ap.
pointed 8 special commissioner 10 exc
cute the city aGeec ioE the land sought
to be condemned upoa the payment OF
the damages assessed. which order the
special commissioner complied with by
executing 9 deed. Since which time
Ohio stree. has been used aad recos-
niIed By the city as ! public street
In and by the deed before mentioned,
dated September %, ISL, Daniel Zane
and Daniel c. List covenaa:ed with the
plaintiff that neither the said Daniel
Zane, his heirs, executors, admiaistra-
tors o, assigns should ever establish any
Jerry from Wheeling 20 the main shore
OF the Ohio river OF either side
Now the plaintiff contends tina. il by
reason OF the condemnation proceedings
aforesaid, and OF the ordinance passed
By the council OF the city OF Wheeling
on February IS, 1924. which protested
70 grant to the defendants the right TO
land its boatsil the city o; Wheeling at
the eastern end OF Ohio ssreeton Wheel
ing lslsnd, as . point upon the Ohio
river Just south OF the line OF Eleventh
street ard also to land at othe, points
under certain circumstances, the de-
tendsut acquired any property or rights
il acquired them IS the assign oithe said
Daniel Zane, aud il no other way or
manner, and thatit holds such proper
y and rights, ii any. subject to the said
covenant made by the said Daniel Zane
rs Aforesaid, and tina. the establish
nent and operation, and intended CON-
biaed o~pe.atioa OF the ferry by the de-
fendant is sa unlawful and direc: viola
ton OF the said covenant
Il may be conceded fos the purpose OF
this decision (s) that the city Of Wheel
inc by season OF the condemnation pro-
ceeiinss aioreaaid acquired 8 mere
right 10 the use OF ohiostree: 6 a stree,
and nothing more, sad taat Daniel F.
ZAne and the other heirs and dsvisees
OF Daniel Zane, deceased, have neve.
parted with or IN any way Invested
themselves OF the lee in ;he street: and
(b} that the grantee OF J Jerry franchise
has no right or authority in Law 10 laaG
his boats on s public highway or street
Ehich Is nsal aNcirsiHAlY "a nnhlir