Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1894-04-25
TEE FERRY Wins.
JUDGE PAULI'S DECISION DELIVERED YES.
TERDAY MORNING.
Ii Denies the Application for an Injunction BY The
Wheeling and Belmont Bridge COmpany-Ths
Full Tex; Of the Document

Belmont Bridge COMPANY LOT an lnJuhc-
ton against the Wheeling Island Packet
| Company. The decision denied the in
! junction.
The purport OF the decision was
| quickly circulated. especially among
citizens of the Island, and over there 1t
created the liveliest satisfaction. The
| ferryboat was 5000 decked out in flags,
| and the stockholders and officers of the
Ferry Company wore smiles all day.
There was a corresponding depression
In bridge circles.
1t is the general expectation that the
Bridge Company will appeal the case to
the Supreme Court OF the State, but no
indication OF that intention had ap-
peared up to late hour yesterday az
! ternoon.
Following is the full text Of Judge
| Paull's decision:
"This is a suit to enjoin and re-
strain the defendant, the Wheeling
Island Ferry and Packet Company,
from further operating its ferry or
any ferry between the shores OF the
| Wheeling Island and the main shores OF
the Ohio river, and particularly from
operating such ferry or any ferry and from
| carving persons, animals or vehicles on
| its boat or boats to or from the shore or
beach of the said Island, on the eastern
side thereof, within 301S rods to the north
or 3OJ6 rods south of the centre Of the
west abutment of the plaintiffs suspension
| bridge.
First. The plaintiff claims that it owns
the exclusive right to use the shore or
beach of the Wheeling Island, on the
eastern side the reof, within the limits
above specified, for ferry landings; and
that the defendant, without having &C
quired the right so TO do, Is operating It's
| ferry within that limit.
1.-The following are substantially the
! facts upon which plaintiffs claims Of
ownership of this exclusive right is based:
ION and prior to Sept 20, lS47. the en-
| tire fee simple estate in the land now IN
controversy was IN Daniel Zane, Daniel @.
! List, trustee, and Henry Moore, trustee,
who were also the owners in common OF a
| ferry which for many years before mad
| been operated near the point where plain
tiff's suspension bridge is now located.
by Sec. - Of an act passed by the Cen
eral Assembly Of Virginia on March -,
| 1S47, power was conferred upon the plain
! tiff to purchase or acquire and hold all
necessary rights of way on or across Zsne's
| Island, and other necessary ways, ease
ments, rights, privileges and estates for
| the use, convenience or accommodation OF
| their bridges or either of them, and all
ferry rights or privileges between Zane's
Island and the main Virginia shore, at the
city of Wheeling
'In pursuance Of the power thus vested
in IL, the plaintiff on the twentieth day OF
| September, lS41,' acquired by purchase
and conveyance from Daniel Zane, Daniel
G. List, trustee, and Henry Moore, trus-
| ~, NJ
aforesaid is now located, and also all the
ferries and ferry rights from said Island to
the main shores of the OHIO river on both
sides, and the exclusive right to use the
shores and beach of the Island for ferry
landings, but not for wharves or other pur-
poseS within the limits above mentioned.
"In Wheeling Bridge Co. V. Wheeling u
Belmont Bridge Co., 13S u. s., PSF; 80 w.
Va, 155, il was held in substance that the
purchase OF the Zane ferry, with the rights
and privileges by law incident thereto, oy
the plaintiff in this suit, under the power
conferred upon it by section IL OF the acts
of the General Assembly OF Virginia afore-
said, did not add anything TO such rights
and privileges, or give them any additional
force or validity. In other words, the act
of the General Assembly of Virginia con-
ferred upon the plaintiff mere power to
purchase or acquire, and nothing more.
Consequently, the plaintiff, upon the exer-
else of this power, became the owner OF
ferry, with such rights and privileges, du-
ties and obligations, and only such, as
were incident to the former ownership
thereof.
''The ferry in question was established
by an act Of the General Assembly Of Nlr-
GINA passed January 10, 1893, which au-
thoriZed a ferry 10 be constantly kept
from the land Of Ebenezer Zane, in the
county of Ohio, across the Ohio river OPP
posite to Wheeling Island, but neither In
this act nor in any other subsequent act
passed by the General Assembly Of Vir-
ginia, or by the Legislature OF West Vir-
ginia. was there conferred upon the own
ers of that ferry an exclusive right, such
as is contended for by the plaintiff. Con-
ceding, however. for the purposes Of this
discussion that the plaintiffs did acquire,
by its purchase aforesaid, the exclusive
right it claims, and it must still be held
that the plaintiff is not entitled TO the aid
of court of equity TO prevent the defend
ant from invading that right.
''In Trcnt V. Bridge Co, 3 Leigh, 52l,
under the provisions of Secs. % and "a,
Chap 237 of Second Rev. Code, which are
substantially the same as Sec. of chap.
a. of the Code of w. Va, it was held: III
a public ferry has been disused for more
than three years, though the franchise of
the ferry owner has not been declared for
feited on quo IUdrTdntO or other ike pro-
ceedings, he is not entitled TO the aid OF
court Of equity 10 prevent others from IN
vading the franchise which he has aoan-
doned by non-use under the statute
"In the case under consideration, the
ferry franchise has been disused for several
times three years.
Second. TIE plaintiff claims that the de-
PENDANT is operating its ferry without hay-
ing acquired the right so TO do. Aud IN
this connection it insists that so much OF
defendants CHAPTER as pTetends 10 author
ize The operation of ferry between Wheel
ing Island and the east bank Of the Ohio
river, in the city Of Wheeling, is wholly
void, there being no authority Of law for
the Secretary Of State TO grant a charter
for any such purpose, and no authority
upon the part of the Board OF Commission
ers. or any other tribunal within this State,
to authorize or license any corporation TO
ferry upon the waters Of this State.
Chap. 81 sec, ,, sub-sec. 10 OF the Code
provides that a corporation may be formed
for any purpose or business useful 10 the
public, for which firm or co-partnership
NAV lawfully be formed in this State
The mere reading Of this section, IL
seems TO me, is Of itself full and complete
answer TO plaintiffs contention, that there
is no authority of law for the Secretary OF
State to grant a charter for ferry purposes;
but Sec. Is of Chap. ~ of the Code IN express
terms recognizes the fact that ferry con-
pany may be Incorporated. The Secretary
Of State. therefore having authority TO ia
corporate the defendant, the Board Of
Commissioners of this county had author
ity 10 license IL 10 operate ferry. See
Chap. "A Sec. Of Code and Chap. ID Sub
sec. %.
"Third. The CITY Of Wheeling, on the
eOth of October, 1873, fled petition IN
this Court for the condemnation Of land
for the purpose Of extending Ohio street
esstwardly from South Front street 70 the
Ohio river. In this proceeding Daniel E