Page images
PDF
EPUB

Sweetland v. Illinois and Mississippi Telegraph Company.

The law is well illustrated by two recent cases in Massachusetts. In the one, an action by a passenger against a railroad company for the loss of his trunk, the admission of the conductor, baggage master, or station master, as to the manner of the loss, made the next morning, in answer to inquiries for the trunk, are competent against the company, it being part of the duties of such agents to deliver the baggage of passengers, and to account for the same, if missing, and inquiry is made within a reasonable time. Morse v. R. R. Co., 6 Gray, 450.

But, in an action against a railroad company for damages by a collision, through the alleged negligence of the engineer, his statements as to the accident, made a few days afterward, were held not competent against the company. Robinson v. The R. R. Co., 7 Gray, 92.

The message, in the case at bar, had been delivered from one to three days before the alleged declarations were made by the agent, which were, in part at least, narrative of a past occurrence, and no part of the res gesta-no part of a depending transaction; and it falls within the class illustrated by the case last cited, and not by the one first cited, from Gray's reports.

In the opinion of the court, it is very doubtful whether any portion of the declarations or admissions of Mr. Short was competent. But, certain it is, that his statements, that he "believed the instrument was the cause of the mistake; that he had written to the company two or three times about it, and that they paid no attention to it," are clearly incompetent, and admissible on no conceivable principle.

We have looked at the case to see whether, conceding the incompetency of this portion of the evidence, we could fairly say that it did not prejudice the defendant. But, when it is remembered, that one of the principal points of contest before the jury related to the question of fact whether or not the instrument was defective; that to this question both parties directed a large portion of the evidence; and that this subject occupies a considerable part of the charge of the court, the materiality of the admissions of Short, erroneously allowed to go to the jury, is too manifest to admit of dispute. Under these circumstances, this court cannot affirm that it reasonably appears that the evidence did not unjustly prejudice the cause of the defendant.

And for this reason the judgment of the district court must be

Lippencott v. Allander.

reversed. The question made by the defendant, as to non-liability for interest on the damages, is settled against it by the stipulation on file, which fixes the amount of the recovery, if there is a liability, and provides that the sum named shall be with interest.

Reversed

LIPPENCOTT V. ALLANDER et al., appellants.

(27 Iowa, 460.)

Ferry-franchise not terminated by death of grantee.

A ferry license when granted becomes the property of the grantee, and is a private right, subject only to the governmental control growing out of its other nature of publici juris. When granted in an estate for years, the death of the grantee can no more terminate it than the death of a tenant can terminate a like estate in lands.

APPEAL from general term, second district, Van Buren district court.

The board of supervisors of Van Buren county issued a license to A. J. Kerr, authorizing him to operate a ferry on the Des Moines river between Bentonsport and Vernon. Subsequently, Kerr died, and this action was brought to determine the right of those operating the ferry to the franchise for the same, the plaintiff claiming that the license was vacated by the death of Kerr. The district court held that the death of Kerr vacated the license, and the general term affirmed the decision. From all which defendants appeal.

Francis Semple, for appellants.

J. C. Knapp & Bertrand Jones, for appellee.

BECK, J. But one question is presented by the record for our determination; it is this: Is a ferry license vacated or the franchise lost by the death of the party to whom it was granted?

The right acquired under a ferry license is called a franchise, and is conferred by grant from the government, and with an implied

Lippencott v. Allander.

covenant, on the part of the government, not to invade the right vested, and, on the part of the grantee, to perform the duties and conditions prescribed by the grant. 3 Kent's Com. 458. This franchise is included in the general denomination of "incorporeal hereditaments," a term used to distinguish one of the different kinds of things real. It partakes of a double nature and character. So far as it affects or concerns the public, it is publici juris, and is subject to governmental control. The legislature may prescribe the manner of granting it, to whom it may be granted, the conditions and terms upon which it may be held, and the duty of the grantee to the public in exercising it, and also provide for its forfeiture upon the failure of the grantee to perform that duty. But, when granted, it becomes the property of the grantee, and is a private right, subject only to the governmental control growing out of its other nature of publici juris. Benson v. Mayor of New York, 10 Barb. (S. C.) 223. In this character and nature it is essentially in all respects property, and is governed by the same rules as to its enjoyment and protection, and regarded by the law, precisely, as other property. Conway v. Taylor's Ex'r, 1 Black. 632; Bowman's Devisee v. Watham, 2 McLean, 376; Dundy v. Chambers, 23 IIL 370; 3 Kent's Com. 458.

The fact that it is conferred by grant from the government, and may be forfeited by mis-user or non-user, does not argue that it is not property, or that it may be lost in a way or manner which will not deprive the owner of other property of his rights therein.

Under the provisions of our statute, ferry licenses are granted by the board of supervisors of the county, for a limited time, and to such persons as, in the opinion of the board, will best serve the public interest, preference being given to the owner of the land, or of a previous ferry. Conditions and terms may be imposed by the board, as prescribed by the statute, and for the violation thereof the license may be revoked. No restriction is imposed upon the sale or transfer of the franchise, and there is no provision that, upon the death of the party to whom the license was issued, it shall be vacated and the franchise lost.

It may be sold upon execution as real property, except that the purchaser may take immediate possession of all property ordinarily used in the exercise of the franchise, which, it is provided, is transferred by the sale. The purchaser at once enters upon the exercise of the franchise. It is exposed to sale differently from other prop

Lippencott v. Allander.

erty; he who will take the franchise for the shortest time, within the period for which the license was issued, in satisfaction of the execution, shall be considered the highest bidder. Rev. chap. 54. Nothing is found in this chapter, or in other statutes, taking from this franchise the character of property possessed by all other things over which men exercise dominion and ownership. The peculiar provision regulating the manner of its sale, upon execution, is designed to secure the continuance of the ferry for the public convenience, notwithstanding the transfer of the franchise thereby. No argument can be drawn from this provision in support of the decision of the court below.

It is argued that the grant of the franchise is made in view of the fitness and qualifications of the grantee, and involves a personal trust which cannot be assumed and exercised, in case of his death, by his representatives, because they may be unfit and unqualified therefor.

Hence, it is thought the death of the grantee terminates the franchise. The answer to this is, that, if the person exercising the franchise fails to perform the duties appertaining thereto, the license, by proper proceedings, may be revoked. Rev. § 1212. And that this position of appellee is not in accordance with the policy of our statutes is made very plain, by the provisions permitting and regu. lating the sales of the franchise upon execution. In such casethe purchaser, by substitution, assumes the duties of the original grantee, and acquires all his rights. No reason can be given why the law will permit this, and yet prohibit the exercise of the franchise, in case of the death of the grantee, by his representatives.. The doctrine contended for leads to another inconsistency, namely: the franchise may be subjected to the payment of the debts of the grantee in his life-time, but is not assets for the payment of the same debts after his death.

The grant of a ferry franchise is made for a specified time, not less than three nor more than ten years, with no reservation that it shall terminate upon the death of the grantee. Being, as we have seen, property, it would not, upon every analogy of the law, be lost by the death of the grantee. At common law it was granted as other real property, in estates for years, for life, or in perpetuity, and was so held. Under our statute it is granted in an estate for years only; and the death of the grantee can no more terminate it than the death of a tenant can terminate a like estate in lands.

Ryan v. Harrow.

The above hardship and injustice of the rule contended for, support a powerful argument against it. These franchises often require great outlays for boats, improvement of roads, etc., in order to render them remunerative to the owners, and useful to the public. The property thus acquired is valuable only in connection with the franchises; and, if they are forfeited by the death of the gran tees, great loss and gross injustice would thus be wrought their estates.

The doctrine contended for by defendant's counsel is not supported by the authorities they cite, viz.: Munroe v. Thomas, 5 Cal. 470, and Thomas v. Armstrong, 7 id. 286.

These cases hold that ferry franchises are not the subjects of levy and sale under execution. The decisions appear to be based upon the grounds that a ferry franchise "involves a personal trust, granted by the sovereign, upon conditions imposed upon the grantee alone; and his liability cannot be removed by substitution." Such sales, as we have seen, are recognized by our statutes, and the ground of these decisions seems to be unsupported by reason and principles of law. The other authority cited (Bowman v. Wathin, 1 How. 189) does not appear applicable to the question involved in this case. Reversed,

RYAN et al., appellants, v. HARROW et al.

(27 Iowa, 494.)

Jury, drinking intoxicating liquors by.

The drinking of intoxicating liquors by jurors after they have retired to consider their verdict is such misconduct as will cause the verdict to be set aside.

APPEAL from Lucas district court.

This was an action of replevin. During the trial below, certain of the jury drank intoxicating liquors, and were alleged by plaintiffs to be intoxicated while deliberating upon the verdict. The verdict was for the defendants. Plaintiffs, upon the ground of the drinking and intoxication of the jurors, and other grounds, moved for a new tria. Motion denied and plaintiffs appeal.

« PreviousContinue »