
    Executors of Theodore Gourdine v. John N. Davis and Thomas Lehre.
    Charleston,
    March, 1830
    A ferry does not pass by a conveyance of the adjacent soil; nor is a rent, reserved on the lease of a ferry, extinguished by the lessee’s becoming tenant in fee of the landing places.
    Tried before Mr. Justice Huger, at Charleston, Spring Term, 1829.
    ^ 203, acts of 18-09, p. 74, and p' 47'
    This was an action of covenant for rent, reserved on a lease of the ferry on Santee river, known by the name of Nelson’s ,Ferry. At the time of the lease, the plaintiffs’ testator was pro-J r r prietor of the ferry, and tenant in fee of the land on both sides ; but subsequently thereto, the land on one side was sold by sheriff, and purchased by the defendant Davis. • It appeared, from the answer of this defendant to a bill in equity, filed by the testator to set aside the sheriff’s sale, and which was in evidence at the trial of the present action, that the sale was made subject to the lease. It was contended, however, for the defendants, that the rent had been extinguished, as to one moiety, by the sale of the land on one side; and that the plaintiffs could recover no more than the other moiety.
    The presiding Judge charged, that the right of the plaintiffs to the rent of the ferry was not affected by the sale of the land; and the jury accordingly, found for the plaintiffs the whole amount of the rent.
    
      The defendants now moved to set aside the verdict as eon*-traiy to law.
    Gmmke, for the motion.
    The grant of a ferry confers nothing but the right to use the waters of the river, for the purpose of transporting passengers : the banks are private property, over which the State can exercise no control. Jacob’s Law Diet. Ferry. Hence it is laid down, that he who has the privilege of a ferry,' ought to have a right to the soil on both sides of the waier; for he cannot, land upon the soil of another, without his assent. Com. Dig. Piscary. (B) Ferry. But when, as in this case, the ferry is the means of enjoying a public road, the grant necessarily implies that the use of the lauding places shall be annexed to the ferry, and be inseparable from it. In contemplation of law, however, the laud is the principal, and the franchise the incident; and a conveyance of the former passes the latter as an easement.
    Again: The franchise is an incorporeal hereditament, and lies in grant; and with respect to interests of that class, it is clear, that no rent can issue out of them. Bac. Abr. Rent. (B.) Jac. L. D. Franchise. Gilb. on Rents, 20, 22. It follows, that the rent reserved must be referred to so much of the soil, as was necessary for landing places, and which therefore passed by the lease to the defendants; and the title to the land, including the landing place, on one side, having become vested in one of the defendants, the rent is to that extent extinguished, and the defendants are intitled to have it apportioned.
    It will be said, that the defence is in nature of a discount, and cannot avail, because it is not in the same right with the plaintiffs’ cause of action. This objection however admits of a ready answer. It is not a discount of an independent demand by one of the defendants, but it is a common law defence to the plaintiffs’ cause of action. It denies the plaintiffs’ right to the rent, and it is immaterial whether one or both of the defendants, or a mere stranger, is intitled to the rent, or whether it is altogether extinguished.
    Dunkin, contra.
    
    It is urged that a rent cannot issue out of an incorporeal hereditament; and the argument might avail, if the question were as to the plaintiffs’ right to distrain. But there is no law better settled, than that a reservation of rent, in the lease of an incorporeal hereditament, is good to bind the lessee, by way of contract. Bac. Abr. Rent, (B.) In this all the authorities concur; and there is no necessity for resorting to the fiction, that the rent in this case was reserved on the lease Of the landing places, in order to hold the defendants to their _ . , contract. .
    It is also argued, that the franchise consists of nothing more than a right to use the waters of the river. This is undeniable, and it utterly destroys the foundation of the defence ; because it demonstrates the absence of any connexion between the laud and the franchise.
    If such connexion existed, it could only be the result of contract : but here the defendant himself has declared, on oath, that there was no such contract, but that the ferry was expressly excluded in the sale of the land.
    It may, indeed, be admitted, that the use of the banks, and the avenues to the ferry, are inseparable from the enjoymént of the latter; but it is inverting the order of things, thence to infer, that the ferry becomes annexed to the land as an easement. If it were so, the public could have no rights in relation to them ; but it is unquestionable, that the public have a right to use both, on payment of-the lawful toll. The true character of the condition implied by the grant is, that the landing places and avenues shall be invested with the same character with the river itself, to wit, that of a public highway. And hence it is that ferries are almost always granted only to the owners of the adjacent soil; because their acceptance of the grant removes all difficulty as to the dedication of the land to the use of the public. But there cannot be a doubt, that, if the public interest require it, a ferry may be granted to a stranger, and as much of the adjacent soil be taken as would be necessary for landing places and avenues, and that without the consent of the owner, subject, however, to his right to compensation. Stark ads. McGowen, 1 N. & M. 387. It is plain then, that although a right to use the landing places and avenues may be said to pass by a lease of the ferry, yet it is a great error to suppose, that the ferry can pass by a conveyance of the land.
    If the defendant Davis, however, had acquired any rights in relation to the ferry, by his purchase of the land, it would be a right to the rent, for which he might have an individual claim on the plaintiffs, but it would not extinguish.their rights under the lease. It is in fact a mere discount, and the objection that it jg not t|le same rjght with the plaintiffs’ canse of action is fatal*
   Colcock, J.

delivered the opinion of the Court.

Jti this case we are unanimously of opinion, that the motion should be dismissed. The discount cannot, be supported on any ground, in the first place, the interest acquired by Davis, by his purchase at the sheriff’s sale, was, according to his own testimony, unconnected with that, which be had acquired from Gourdine by the lease. He stated in answer to a bill in equity filed by Gourdine against him, for the purpose of setting aside the sale, that he had a lease for the ferry, which adjoined the land offered for sale, and that if the same were sold, it must be sold subject to the lease; and that the sheriff stated that the same was sold subject to the defendant’s lease.” Now suppose a stranger had bought it, could he have claimed any interest in the ferry by virtue of the purchase made under such a condition 1 There could be but one answer to the question. Why then should the defendant be permitted to do so?

If however it were necessary to determine what was the interest which would have been sold by the sheriff, if nothing had been said reserving the rights of Davis, I should not hesitate to say, that the sale of the fee simple of the soil did not carry with it any right whatever in the chartered interest. It is true, that the Legislature, for the most part, grants ferries to those who own the land on both sides; but it is equally true, that they may grant them to any others, and that the owner could not, in consequence of his original right to the soil, prevent the use of the ferry. It is no more than a highway, and the Legislature is in the daily habit of taking land for these purposes. If the land taken is of any value, it may be the foundation of a claim for compensation; but it would be the public’s for the time it was so used.

It is further urged, that the claim attempted to be set off was in a different right, which I think would also have been fatal., had there been any well grounded claim; for it would have been exclusively the property of Davis. But this point, from the view which I have taken of the case, cannot arise.

Motion refused.  