984 Ex PARTE GRAYSON. [169 Ex PARTE GRAYSON Opinion delivered November 30, 1925. 1. . FERRIES—RIGHT . TO, KEEP.—Under Crawford & Moses' Pig., § 4694, the preference right to keep a public ferry is given to the Person owning the land frOnting on ' any navigable •stream, and, if he owns or controls the land on both banks, he is entitled to the • exclusive right of ferriage at such place. . FERRIES—CONTINUANCE AND DISCONTINUANCE. — Whi le public fer-, ries are established for the accommodation of the public rather • than for the gain,and advantage of individuals, yet, when a ferry franchise is once granted and a ferry, is established under it, the privilege continues, subject to the power of the county court to • discontinue the same when the public interest oi • convenience demands it• I • FERRIES—ARBITRARli DISCONTINUANCE. A county court; has no • power arbitrarily to discontinue a ferry franchise by refusing , to grant the .annual, license for its exercise, in the absence of • evidence shovidng that such discontinuance is required by the • publi6 ' interest or 'cOnvenience. Appeal from Woodruff Cirmit _Court, •Northern trict ; E. D. Robertson, Judge; reversed. • • • : : Johin E:Miller and Citlbert'L. , Pearce, for apPellant. .TV: J.' Diinganl anvicus'cdriae. 'HART, J: -T. E. Grayson pro'secutes this apPeal to reverSe a judgment Of the circuit'Cburt denying and disMissing hiS 'Application to 'operate a ferry across White River at the niouth 'of Taylor's Bay in Woodruff Connty; Ark. ' • On July 17, 1925, .T. E. Grayson filed his appliea-tion for his annual license to operate a public ferry across White River at the Mouth of Taylor's Bay in Woodruff County, Ark. His petition alleged that he owned the land on both banks of the river at that place, and that there was not then in operation any ferry on said river within one mile of the land in his possession on both banks of the river ; that he had heretofore operated a public ferry under an annual grant of license by the county court ; that the operation of a ferry at that point was necessary for the public convenience, and that
ARK.] Ex PARTE °PAYSON. 985 he had ' the eiclnsive right te . operae a ferrY at . that point. He filed the ' bond required by the stathte. the same day his application was heard by the county court, and a' judgment was entered denying him license to operate a ferry as prayed for in his petition.. Gray-: son duly prosecuted an appeal to the' circuit , court.. T. E. Grayson was a witness for himself. Accoiding -Co . his testimony, he had been operating a ferry at the month of Taylor's Bay on White River near AuguSta for four years under an annual license froth the county court. People and pfoperty are conveyed across the .river and the mouth of Taylor's Bay at . the same time. T. E. Grayson is in possession of' the land on both banks .of the river at that . point, 'either by deed or by -lease. He was ready to pay the annual license fee for - opeiat-. ing the ferrY. During the preeeding year, from ten to fifteen persons a day:used the ferry, and the travel consisted of people from all the country. .•, On cross-examination he testified that the people living between the Bay and east of White River' only crossed ' the Bay. The rivei . is entirely in • WoOdruff County at the point where the ferry is located. Other witnesse's corroborated the testimony 'of T. E. Grayson, and in addition testified that the ' operation of a ferry . at that point was'neeessaa'y for the Public convenience ; that the road leading fromAugusta to thisferry had been in . use for forty or fifty years, and- that the rOad on the west of the river from the ferry . had been there about the same length . of . time: -' The toad on the West 'side- of the ferry ferks, and one prong . funs in a nerthWesterly directiOny and the other runs in a westerly direction. There is another ferry On: White River near 'Augusta which is four and one-half Miles by water and two and one-half by land froth the ferfy in question. This was all the testimony introdnced on the question., Under our statute the preference right tO leep a pnb-lic ferry is given to the person *owning . the land fronting 'on any navigable stream, and, if he oWns - er eonttols the
986 Ex PARTE GRAYSON. [169 land on both banks, he is . entitled to the exclusive right of , ferriage at such place. Crawford & Moses' Digest, § 4694. .. . . . The preference which the statute accords to Grayson as owning. and controlling the land on both banks of the river was -observed by the county court in granting him a license to operate A ferry at that place.. The ferry so: established was not within one mile of any , other public. ferry, and he had held and enjoyed the exclusive right to operate such ferry. for four years prior, to his application for his annual license in the present case. It is true that public ferries are established for the ac-advantage -of individuals ; •but 'it is the settled law in - this -State:that when a ferry franchise is once granted, anda ferry is establiShed under it, the privilege continues \ subject:to the power of the ccunty court to discontinue the same when the .public interest or convenience demands it ; lylurray v. Menefee, 29 Ark. 561; Lindsay v. Lindley,-20 Ark. 573; Bell v. Clegg, 25, Ark..26; Shon-y, F.inley,.95 Ark. 342; and Mynn v. Skults, 130 Ark. 291. While the county court has the power to discontinue a fe ' rry iranchi.se by, refusing the annual license for its further exercise -When tbe publiC Welfare requires it, still there mnst be some foundation...in fact. for the exercise of such power. , In. the case at-bar, Grayson adduced evidence to sustain his ferry; And none . whatever was introduced tending to show that , the pUblic convenience or welfare required it to be discontinued.- Tinder, these circumstances -the1action of -the county court in refusing to grant the license was an arbitrary act on its part, and the action of the circuit court to the same effect was also arbitrary \ in law, because . no evidence was introduced tending to show that the public convenience or welfare would be \; promoted by denying the right of Grayson to operate the ferry at the place where it had been established and
. . operated for . several years •next -preceding his . a • p.plica-HMI for his annual license under the statute. It follows that ihe judgment wilt be reversed, 'arid, inasmuch as the cause appears to : hAve been fully deVel-. oped,. the circuit court will .be :dilFected to: enter a.judgment in favor of T. E. Grayson and' certify it down to tbe.: county court, to the . end•that his annual ferrY license mar: be . granted. - •
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.