Opinion
(March Term, 1797.)
HAYWOOD, J. The county court, after establishing one ferry at a particular place, has no right to establish another so near the former as to draw away its profits. But STONE, J.: The county court is empowered to establish ferries where necessary, and may establish two at the same place, if it is deemed proper to do so.
THERE was a ferry established by order of the county court, on the river near the courthouse; and some time afterwards, upon some complaint to the county court that the people of the county were often delayed on public days for want of crafts and ferrymen, they made an order permitting another person on the other side of the river to keep a ferry at or near the same place; and from this order the former ferryman appealed.
These orders for keeping ferries, made by the county court, are like grants of the king for the same purpose in the English law; and the liberty granted by them, like those in the king's grant, are forfeitable for abuser or nonuser; but there is no evidence set up of improper behavior in the ferryman, of nonuser or abuser. The act of 1784, ch. 14, secs. 1 and 15, has ordered bonds to be given by the ferryman, in a large penalty, for the faithful and punctual discharge of his duty; he is thereby liable for in attention in any special instances. By the same act 5 penalty is inflicted for detaining any persons for want of hands, boats, or attendance. With respect to ferries, the common law was that no ferry should be erected so near another bound by law to be provided with crafts, attendance, etc., as to draw away its profits. 3 Bl. Com., 219; 2 Roll. Ab., 140. It goes upon this principle, that such prohibition is for the public good, as the best way of encouraging expensive undertakings for the service of the public is to secure to the undertaker the profits accruing. The principle of our act of Assembly is the same. 1787, ch. 16, sec, 1, inflicts a penalty on those who transport passengers across at public ferries, not being duly authorized. So does the act of 1787, ch. 3, sec. 4. They deem it unreasonable to suffer another to interfere with the profits of a ferry already established, at a considerable expense, perhaps, to the owner, as such interference is discouraging to undertakings of that sort, and of course disadvantageous to the public. This being the principle of our law, I am not for allowing another ferry to be established at or near the same place. It might divide the profits so as to render the ferry of no value to either.
The act of Assembly empowers the county court to establish ferries where necessary. They are the proper judges where it is fit to establish them. If they deem it proper to establish two ferries at the same place, they may do so. There are two ferries established at the same place in several parts of this State. This proves the power of the county court to establish them. Sic adjournatur.
NOTE. — That the county court does possess the power to establish more than one ferry at or near the same place seems not to have been doubted in Beard v. Long, 4 N.C. 167. But it is there said that the public faith pledged to the first grantee ought not to be violated unless the public interest manifestly demands the establishment of an additional ferry.
Cited: Atkinson v. Foreman, 6 N.C. 57; Barrington v. Ferry Co., 69 N.C. 170.