#### Isaac Pipkin et ux. v. James D. Wynns & Wm. B. Wynns,

From Hertford.

The exclusive right of keeping- a ferry and taking tolls belongs to tins sovereign ; l>ut he can grant the franchise to none but the owner-of the adjacent lands. If the owner refuses to exercise the franchise, the grant may issue to another. But in such case, compensation must be made to the owner of the fee, or the use of the soil for that express purpose, although there is a public highway leading to the river on both sicb-s.

An order of the County Court granting to one tenant in common the exclusive right of keeping a ferry and receiving tolls, without de* fault in the others, and without notice to them, is void.

The c>se of Mayner v. Dowdy (I Murp. 279) overruled.

Twenty years enjoyment of a franchise raises a presumption of a grant.

This was an action of assumpsit fop money had and received by the Defendants, to the use of the Plaintiffs, commenced in obedience to an order of the Court of Equity for the county of Hertford, for- ihe purpose of trying the title of the Plaintiffs, as tenants in common with the Defendants, to a ferry upon Chowan River.— By the order of the Court of Equity, the Defendants were to admit the receipt of money for the use of the Plaintiffs, to enable them to sustain the action, and were to take no formal objection to their recovery.

Upon the trial before his Honor Judge Danieu, the jury returned a special verdict, as follows : “ Thai T/¿o* ■mas Wynns was seised in fee of a tract of land -Tirite iri Hertford Couuty, on the south side of Chowan River— *403that he was also seised iti fee of another tract in Grates County, directly opposite the former on the north side „ . , , . . , .. ot the nveiwtnat the rivet* Chowan is a public river, navigated by sea vessels — that from the year 1790 until the year 1S25, when the said Thomas Wynns died, he had kept up a ferry across the river, landing on each side upon his own premises — that during all this time he had taken tolls for transporting persons across the said ferry, ‘ — that it did not appear that the said Thomas Wynns had ever obtained an order of the County Court establishing the said ferry — that the road to it from the south, had ever been a public highway — that on the north side, the way to the ferry from the nearest public road, was made through the swamp by the father of the said Thomas Wynns, aud had ever been used by the public» and had, together with the landing places on each side of the river, been kept in repair at the expense of (hesaid Thomas and his father — that the said Thomas died intestate in the year 1825, seised in fee of the lands before described, and leaving Margaret Pipkin, one of the Plain-■ tiffs, one of his heirs — that the Defendants are also heirs of the said Thomas — that soon after the death of the said Thomas, the Defendants applied by petition to the County Courts-of Hertford and Gates, for an order to keep the said ferry, and were by the said Courts appointed ferry-keepers — that no notice of this application was given to the Plaintiffs, and that the Defendants, ever since the said order was obtained, have kept and used the said ferry.

June, 1830.

The presiding Judge, upon the authority of Raynor x, Dowdy (1 Murp. 279) held, that the Plaintiffs had no interest in the ferry, and gave judgment for the Defendants upon the verdict: from which the Plaintiffs appealed.

Hogg & Badger, for the Plaintiffs, argued,

that the exclusive right of keeping a ferry, is an incorporeal he-reditament annexed to an estate in land, which cannot *404|j0 exercised but by virtue of a grant from the sovereign., (Mar dr ess 179.) That in this State there was nothing peculiar, except that the County Courts were authorized tQ |ssue_ the grant. That to maintain a ferry, the ferryman must necessarily be owner of the lands on both sides of the river; (13 ViiwM. Ferry Jl.pl. 208. 3 Blk. Com. 219) and of course, that it was not competent for the sovereign to grant a license to one man, to establish a ferry upon the land of another.

They also argued, that twenty years enjoyment of the franchise by the ancestor Wynns, gave him an absolute right, or was a circumstance from which a jury ought to be directed to presume a grant.

Gaston, contra,

relied upon the case of Rayner v. Dowdy (ubi supra) and insisted that the sovereign, and in this State the County Court had power to grant the right of keeping a ferry to any individual, even if he owned no land on either side of the river.

Henderson, Chief Justice

-The case of Rayner v. Dowdy, or the reasoning upon which it is founded, stands directly in the way of a correct decision in this case. That case was argued on one side only, and was not well considered.

The sole and'exclusive right of transporting persons over water courses for tolls (by which is meant price, independent of contract) resides in no individual j it belongs to the sovereign- But the right of transporting persons over water courses may belong to an individual, and he may by contract express or implied, receive hire for so doing* it is the exclusive right which makes the franchise. Where the sovereign, as owner of the land, possesses the power of transporting persons, his grant in such cases will communicate the whole franchise. Where the sovereign is not the, owner of the land, his grant communicates only the exclusive right; for a sovereign cannot grant that which he has not, more than any indi*405vidual. If I am owner of the land at the place of landing on both sides of a river, and the sovereign grants this right to another, it is granting that which is in me, and the grant is void. If a ferry lie necessary at that place for the public good, the land may be taken by the sovereign for that purpose; but it must be taken in the manner prescribed by law, by which I am compensated for my loss. What interest in the laud passes to the sovereign by establishing over it a public highway ? The right of passing only, and of taking the necessary materials (adjoining or convenient) for repair. The residue of the dominion or property remains in the former proprietor. It remains his freehold still. For the uses and purposes of the highway, it is "the sovereign’s 5 for all others it is the former proprietor’s. The right of using it as a landing place for a ferry has never been taken from him 5 and altlio’ there is scarcely a perceptible difference, between stepping/ma a boat on the land laid out as a public road, and stepping from land to land, yet that has never been taken from the former proprietor for such purposes, as he has never been compensated for the right of transporting persons across the water course, as that was not considered «lien She price of taking the land for a highway was fixed $ arid altho’ it is but of little value without the franchise, yet his ownership of the land gives him. the preferable right to call for the franchise, when a ferry becomes necessary. This right is valuable, for unless there are good reasons to the contrary, the sovereign must grant it to the owner; as sovereigns are bound to be just. Á grant to another' without good reasons is void, as an act of injustice, it cannot therefore be arbitrarily and capriciously granted to another. And when it is so done without hearing the owner, by which is meant without giving him an opportunity of being heard, it is prima facie an act of injustice, and the grant is void. If it is asked what is to be done, if the owner of land, where a ferry is necessary, *406refuses to receive the franchise, it is answered, pay him for his land and grant it to another. The law has prescribed a method, whereby land wanted for public pur-p0SCS may {,e taken from an individual. But then the owner is always compensated for -what is taken from him. Let it not be (aken, as it were, surreptitiously $ taken for one purpose and used for another; taken for a road and used for a ferry. The owner is to be considered as refusing to call for the franchise, when he omits to perform what is required by law of those appointed (in the language of our law) ferry-keepers. If, when appointed, tie does not perform the duties of a ferry-keeper, he is liable to ail the penalties of those who abuse a franchise, to be inflicted by indictment, quo warranto, or other means prescribed by law. But it is not to be expected, that the owner of the land will not call for the franchise. Men generally pursue their own interest, and if the owner cannot, by reason of poverty or other cause, use it' himself, he can hire it to others. But we are not to act upon such suppositions. When they occur, the law has provided a remedy for them.

I have considered this case, as if the landing on the northern side of the river was a public road. But it is the property of the heirs of Thomas Wynns, of which the .Plaintiff is one. We are satisfied, notwithstanding the decision in Eayner v. Dowdy, that the Court cannot grant the franchise to any but the owners of the land, at least until the owners shall be in default. Nor had the Defendants, as apart of the heirs of Thos. Wynns, a right to call for the franchise to themselves in exclusion of the others, as the lands descended to all the heirs.

We are of opinion also, that in this case, the long user is sufficient to raise the presumption of a grant j but this it is unnecessary to consider,

The Judge below felt bound by the decision of Rayner v. Dowdy. I think from his bottoming his judgment *407entirely on that case, he would have decided differently, if he conceived himself free to act,

Per Curiam. — Let the judgment of the Court below be reversed, and judgment entered for the Plaintiff.