Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1894-04-25

oUAIs Al I'LL 90, lOSt
heirs. executors, administrators or assigns,
| should ever establish any ferry from
| Wheeling Island to the main shore OF the
| Ohio River. on either side.
Now the plaintiff contends that II, oy
reason Of the condemnation proceedings
aforesaid, and of an ordinance passed by
( the Council OF the city OF Wheeling on
February IS, 1894. which proposed to grant
| to the defendant the right 10 land its boats
| in the CITY of Wheeling at the eastern end OF
| Ohio street, on Wheeling Island, and at
| point upon the Ohio River Just south OF
| the line of Eleventh street, and also TO land
at other points Unoer certain cireumstan-
ces, the defendant acquired any property
or rights, it acquired them as the assigns
of the said Daniel Zane, and in no other
way or manner, and that il holds such
property and rights, il any, subject TO the
said covenant, made by Daniel Zane as
aforesaid, and that the establishment and
operatiou and intended continued opera
ton of the ferry by the defendant is in I'M
lawful and direct violation Of the said COW
enant
SIT NAV be conceded for the purpose OF
this decision (d) that the City Of Wheeling,
by reason OF the condemnation proceedings
aforesaid, acquired mere right TO the use
OF Ohio street as a street, and nothing
more, and that Daniel +. Zane and the
other heirs and devisees Of Daniel Zane.
deceased. have never parted with or in any
way Invested themselves Of the fee in he
street; and o. that the grantee OF ferry
franchise has no right or authority in law
to land his boats on public highway or
street without the consent OF the owner OF
the fee therein. This last proposition Is
sustained by the following among other
authorities: Chambers V. Furey, Yeates,
l67; Cooper V. Smith, 9 Serg. r., 20;
Prosser V. Wapello, IS Iowa, S2o; Buford
v Smith, 81 S. w. Rep. (Tex.), l6S; Pear
sail v. Post, 20 Wend., Ill, and IS based
upon the theory that by the dedication or
condemnation of land for a street or high
way, the public acquire right OF passage
and nothing more, and that the use Of such
street or highway for the purpose OF ferry
landing is an additional burden or servi-
tude.
1.-THE same is clearly and forcibly express
ed by Judge Cowen in Pearsal V. Post,
supra, on page 1873, as follows: The in
tention Of laying out public highway IS TO
make free passage, not pront 10 overs
of water crafts. The easement is for land,
not water carriage, and therefore, Is not 10
be touched by the latter, without permls-
sion of the owner
The case at bar, however, is governed
by other and entirely different princi-
pies, as will be apparent from the following
considerations. The city of Wheeling, by
its charter, is vested with full power and
authority TO establish within its corporate
limits public landings and wharveS. In
pursuance Of this authority, the city, moro
than twenty years ago, took possession OF
the tract Of land near the foot OF Eleventh
street, where one of defendants landings
is located, and paved it as and for part
of public wharf or landing, and has ever
since used and occupied the said tract Tor
that purpose. And on the 23d day OF July,
1883, in pursuance Of the same authority,
the said city, by an ordinance passed by us
Council, declared the east end OF ONO
street. the point at which the defendants
other landing is located, TO be public
landing which ordinance is now and ever
since its passage, has been in full force and
effect.
1T will thus be seen that both Of de-
fendant's landings are public landings.
Now. the easement Of public landing IS
for water carriage and not for land; ana
the city acquired this easements for that
purpose, and no other. Whether 1t was
lawfully so acquired, is question that IS
not and cannot be raised in this city.
were lawfully acquired, 1t must be held
that the city had clearly the right and
authority to grant the defendant the privi-
lege of using them for the purpose OF land.
ing aud receiving persons, animals ana
vehicles from and on its boats. without the
consent either of the plaintiffs as cove
nanted under the deed Of September 20,
1S47, or of the owner Of the fee of such
landings, as such use, being entirely con-
sistent with the purpose for which the
landings were acquired, cannot be regarded
as imposing an additional burden or servi-
tude upon the fee. Hence, as the city had
the lawful right and authority TO confer
this privilege upon the defendants, IL fol-
lows as a necessary consequence tnat no
rights of the plaintiff are being violated by
the establishment and operation and ln-
tended continued operation OF Defendants
ferry.
AZ gain. in Brewer v. Marshall, 10 n. j..
CHI, 537, it was held that covenant made
by vendor OF real estate that neither he
nor his assigns will sell any mari from of
the premises adjoining the tract conveyed,
will not be enforced in equity against the
alienee Of the land intended TO be burth-
ened bv such covenant, on the ground,
among others, that IL is illegal and void as
being in general restraint Of trade.
THE case is cited with approval by
Judge Green, in Tran. Co. V. Pipe Co., -
w. Va, GOO.
at is difficult, il not impossible, 70 draw
any distinction in principle between the
covenant under consideration and the cove
nant In Brewer v Marshall, supra, which
the New Jersey Conrts refused 10 enforce.
"For the foregoing reasons plaintiffs APP
plication for an Injunction must berefused."