Noah Haynes Swayne

“ The statutes of Kentucky recognise what is called a ferry right on the Ohio river as a riparian right of the owner of the coast bordering on the river, and the franchise to exercise this right is grantable to such riparian proprietor exclusively. None but a resident of Kentucky can have a ferry grant; the riparian proprietor has an exclusive right to the grant; no new ferry can be established within one mile and a half of an established ferry, except where an impassable stream intervenes, or in front of a town, and then not within four hundred yards of the established ferry. ”

“ When the Revolution took place the people of each State became sovereign, and in that character held the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the States to the General Government. ”

“ We see, however, that this State sovereignty is not claimed by the court to extend beyond the Kentucky shore, but is confined to her 'own territory, on which, in the cases prohibited, persons and property must be landed.' But are we to infer from this that Kentucky, in virtue of her sovereignty over the Kentucky coast on the Ohio river, can make any sort of regulation, however much it may interfere with navigation and commerce? ”

“ The Commonwealth holds the property of this soil for the conservation of these public rights of ferriage, fishery, &c., and, under its reserved rights, may regulate the same. From the ownership and legislative power of the State over it, not less than from its duty to preserve unimpaired the public uses and private rights in which it is held, it may legally do any act or forbid any act which would render the right less valuable, tend to its destruction, or prevent its enjoyment. ”

“ Many of the State laws regulating vessels in ports and harbors, appointing harbor-masters, erecting wharves, regulating cargoes and ballast, places of anchorage, prescribing rules for the navigation of our largest rivers and lakes, are strong illustrations of the concurrent power of the States with the General Government, even in matters of commerce, until there is a direct antagonism. ”

“ But the license of the Commodore should have protected her in making regular trips as a ferry boat between Cincinnati and Newport. The only ground u on which she is prohibited from doing so is that such transportation is in violation of a ferry franchise granted to appellees by the State of Kentucky. No such ferry franchise exists. It cannot be denied that the license of the Commodore gives her the right to the free navigation of the river to and from all the ports upon it, at least until some paramount and exclusive right is shown on the other side. ”

“ It is said that 'a corporation can have no legal existence out of the sovereignty by which it is created.' Ang. and Ames on Corps., Sec. 161. And this is equally true of all other franchises.
Take the case of a franchise for a toll-bridge across the Ohio, only authorized by a grant from Kentucky, and to make the supposed case parallel with the case at bar, let the Kentucky franchise only authorize the bridge and transportation over it from Kentucky to Ohio; could such a franchise be sustained or pleaded in restriction of any common right, lawfully exercisable, if no valid franchise existed? ”

“ A ferry franchise is as much property as a rent or any other incorporeal hereditament, or chattels, or realty. It is clothed with the same sanctity and entitled to the same protection as other property. ”

“ The limitation is the line which protects the ferry rights of the appellees.
Those rights give them no monopoly, under 'all circumstances,' of all commercial transportation from the Kentucky shore. They have no right to exclude or restrain those there prosecuting the business of commerce in good faith, without the regularity or purposes of ferry trips, and seeking in nowise to interfere with the enjoyment of their franchise. ”

“ While they fence about with stringent safeguards the rights of the holder of the ferry franchise, they do not leave unprotected the rights of the public. If they give the franchise only to the riparian owner and citizen of the State, they surround him with sanctions designed to secure the fulfilment of his obligations.
The franchise is confined to th transit from the shore of the State. The same rights which she claims for herself she concedes to others. She has thrown no obstacle in the way of the transit from the States lying upon the other side of the Ohio and Mississippi. ”

“ The Court of Appeals says that our voyage from Ohio to the public landing is lawful. No ferry franchise or riparian right is allowed to prevent that sort of transportation, because Kentucky has chosen to that extent to admit the public right of navigation. But as to the return voyage our boat must go empty; not a person or thing can be taken back. ”

“ Whilst this injunction remains, a single voyage or trip by our boat, carrying persons or property, from our wharf in Kentucky to the Ohio side, is forbidden; our license affords no protection to us for any sort of transportation from that landing across the river. If, after this decree, the Commodore should be engaged in commerce between Pittsburg and Cincinnati and intermediate ports, and should touch at Newport, she might land passengers and freight, but could not receive passengers or freight to be transported to Cincinnati ”

“ The court say: 'It does not certainly appear, whether or not the public interest requires the establishment of another ferry; but as the parties have waived that question, we will consider it on the ground on which they have placed it. That ground was, the ownership of the river bank in front of Newport, and it was held to be in Taylor; so that application failed.
In the year 1850 the Common Council of Newport made another application for a ferry. This application, after being granted by the County Court, was resisted by Taylor, and taken to the Court of Appeals. ”

“ The right to a ferry does not at all depend upon the right co, or property in, the waters over which it passes. The right of ferry is a franchise, consisting in the right to transport persons, carriages, vehicles, &c., for hire, and therefore the property of waters may be in one, and the right of ferry in another. ”

“ On the 20th August, 1795, a re-survey and plat of the town of Newport was made, by which the eastern limits of the town were extended to 'Eastern Row,' and the strip of ground between the Ohio river and the northern boundary of the town, and between Licking river and the western boundary of the town, were endorsed, 'Common or esplanade, to remain common forever.' This plat was made by Roberts. ”

“ It may be safely affirmed, that there is scarcely a State in the Confederacy, lying upon a river, which has not, from the adoption of the Constitution, and before that period to the present time, claimed and exercised, without question, the exclusive right of establishing and regulating ferries over the rivers thus constituting their boundary. ”

“ Ferrymen have the same common right to navigate these whters with their boats, as fishermen, coasters, or shipmasters, with their boats and vessels, and the United States with her navies. The franchise of a ferry does not confer or enlarge, take away or impair the right of navigation. 15 Pickering, 253. A ferry must include the right to land. ”

“ It can exercise authority over no subjects, except those which have been delegated to it. New Orleans vs. The United States, (11 Peters, 735;) Pollard's Lessee vs. Hagan and others, (3 How., 223.)
That the Ohio river was wholly within the limits of Virginia up to 1st March, 1784, cannot be doubted. Upon that day she granted to the United States 'all the right, title, and claim, as well of soil as of jurisdiction, which this Commonwealth hath to the territory or tract of country within the limits of the Virginia charter, situate, lying, or being to the northwest of the river Ohio,' &c. ”

“ The license gave her authority to carry on the coasting trade. Together they put the appellants in a position to make the question here to be considered.
The language of the Constitution to which this objection refers is as follows: 'The Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.' Art. ”

“ State laws have always been upheld by this court, except in cases where they were in conflict, or were adjudged by the court to be in conflict, with the act of Congress. Sennot et al. vs. Davenport, (22 How., 244;) 2 Woodberry's Writings, 221; Woodberry & Minot, R., 401-451; 12 Wheaton, 441; 3 Howard, 230; Milnor vs. Railroad Company, (6 Am. L. R., 9.)
James Taylor, as the owner and patentee in 1787 of the land on which the town of Nowport was located, became vested with all the riparian rights of fishery, of ferry, &c. ”