
    *James Ross v. Samuel Page.
    ¿Keeper of a ferry from the Virginia to the Ohio shore, across the Ohio river, landing persons upon the lands of the keeper of a ferry on the Ohio shore, is a mere trespasser, whom chancery can not restrain by injunction.
    'This cause was adjourned from Jefferson county for decision there. It was a bill in chancery seeking the aid of equity to enjoin the owner of a ferry from the Virginia shore of the Ohio river to the Ohio shore, from landing passengers on the complainant’s land, who also owned and kept a ferry from the Ohio to the Virginia shore. The ease made by the allegations and proofs is briefly this:
    The complainant claimed to own the lands on the Ohio shore; had been in possession and kept a ferry under a regular license, for about-thirty years. The ferry on the opposite side of the river had also been long established and regularly kept. Eor a time, .the landing .of both ferries were at the same places on both sides, On the Ohio shore, the landing was at the junction of certain streets, from which, in 1816, a road was regularly laid out and used to low water of the river. The complainant had previously removed his ferry to another point. The road became disused, and went out of repair. The respondent, to fit it for use, enteied on complainant’s lands adjacent, and dug and carried away earth for that purpose. He also landed passengers at that place, and there received them on board his boat for conveyance to the Virginia shore; but for this last he charged no ferriage.
    B. T. Weight and Tapp an,
    for complainant, contended that the only question raised was, has a licensed ferry-keeper from the Virginia shore of the Ohio river a consequent right to land his passengers on the lands of a licensed ferry-keeper in Ohio, and gratuitous^ take passengers from the Ohio shore, which otherwise would be compelled to use defendant’s ferry and compensate him?
    Stokely and Marsh, contra.
    This court will not interfere to restrain a mere trespass, even when the right is clear, save only to prevent irreparable and irremediable mischief to the inheritance, and leaves all other cases to the ordinary remedy of the courts of law. Jerome et al. v. Ross, 7 Johns. Ch. 315, is a very strong case, and the cases there cited. Hart v. Mayor *of Albany, 3 Paige, 213; Stevens v. Beekman et al., 1 Johns. Ch. 318.
   By the Court :

The court are satisfied that the complainant has no exclusive right to the ferry; if the respondent can find a place to land his boat, without touching the complainant’s land, he does no wrong to the complainant by keeping up the ferry. It follows that the injury, the gravamen of the complaint, is not the invasion of the feny franchise, but trespass upon the land across which the passengers find their way to and from the shore and the boat.

Is this a case for restraining a mere trespass by injunction? Where the trespass amounts to waste, going to the destruction of the estato, and producing an injury for which pecuniary compensation can not be made, chancery may be called upon for its aid to stay the mischief by injunction. Chancellor Kent, 7 Johns. Ch. 315, reviewing the cases on this head of chancery jurisdiction, says he “knows no case in which an injunction was granted to restrain a mere trespass, merely because he is a trespasser, without showing the property itself was of peculiar value, and could not well admit of a recompense, and would be destroyed by repeated acts of trespass. In ordinary cases, the damages to be assessed by the jury will be adequate for a check and for a recompense. It would require very strong evidence of the inefficacy of legal remedies for compensation as well as for correction, before this court will assume a jurisdiction heretofore unknown.” We consider the case cited as conclusive of the one before us.

It is not a suit asking the interference of chancery, because the trespassers are without property, and unable to respond in damages. This is not to be presumed, but must be shown before chancery will pass by the ordinary remedies and interpose its extraordinary aid.

It would be a further objection to granting the complainant the relief prayed for, that he has not established his right at law. .So far from showing the better right, the case as it now stands rather invests the respondent with it. The proofs show that a road runs to the river which has become disused and ruinous. This road seems to have been regularly laid out, and if it had not, it is shown to have been used for eighteen years. A much shorter time of use has been held evidence of a highway. It was the right of the re-168] spondent to repair this road, and if he *dug the soil of the complainant to be applied to this purpose, even if he went upon the adjoining land to construct a road because the ordinary path was out of repair, it could in no legal view be regarded but a mere trespass.

Bill dismissed.  