We are of opinion that the County Court of Hertford had a right to grant to the Plaintiff the privilege of erecting and keeping a ferry, although he did not own the land on either side of the creek. Let. judgment be entered for the Plaintiff.
Raynor v. Dowdy, 5 N.C. 279, 1 Mur. 279 (1809)
July 1809
·
Supreme Court of North Carolina
5 N.C. 279, 1 Mur. 279
Raynor v. Dowdy and Benthall.
From Bertie.
The County Court may grant to a man the privilege of erecting and keeping- a Ferry, although he do not oiwn the lands on either side of the river or creek, over which the Ferry is established.
The County Court of Hertford, granted to Raynor, thé Plaintiif, the privilege of erecting and keeping a ferry on Wicacon Creek, The Defendants brought an ejectment against Raynor for the land whereon the ferry was erected, recovered a judgment, and the Sheriff of Hertford County put Benthall in the possession of the land, but refused to put him in possession of the ferry. Benthall demanded possession of the ferry, which being refused, he armed himself with pistols and took possession of the ferry. At the time the County Court of Hert-ford granted to Raynor the prvileige of erecting and keeping this ferry, he did not own the land on either side of the creek. The jury found a verdict for the Plaintiff, and assessed damages for the trespass, subject to the opinion of the Court upon this question, “ Whether the County Court of Hertford had a right to grant to Raynor the privilege of erecting and keeping this ferry when he did not own the lands on either side of the creek ?” The case being sent to this Court, was argued by
Cherry, for the Plaintiff.
The act of 1784, ch. 14, sec. l, declares “ that the Courts of the several counties in this State shall have full power and authority to ap, point and settle, ferries, and to order the laying out pub**280He roads where necessary, and to appoint where bridges shall be built.” This act places the establishment of ferrjes entirely in the discretion of the County Courts. The passage of a stream across a public highway is to be considered as part of the highway, in which all the citizens have a property in common. If it be not so considered, and the County Courts are to be restricted in their discretion, in laying out public highways and settling Ferries, much public inconvenience will result. The owner of the land on each side of the public road may be unwilling to keep a ferry, and if the right to keep one can be granted to no other person, the consequence immediately follows, that no ferry can be had. Or if different persons owned lands on opposite sides of the same river or creek, (and no one could keep a ferry but the owrner of the land on each side of the road,) if either of the owners of the land were obstinate, foolish or capricious, no ferry could be kept up, as the owner on one side could prevent his neighbour on the other side from landing. The public high roads are public property, and subject to the control of the constituted authorities of the country. Were this not the case, it would be impossible to have any intercourse with, or conveyance to many of the towns of this State, where there is no County Wharf. The citizens owning the land on each side of the street would have it in their power to prevent any person from landing, unless a landing could be effected on the public street.