
    Nashville Bridge Company vs. Shelby.
    Nashville,
    December, 1837.
    Where public convenience requires a public ferry to be established, the owner ofthe soil onboth banks of the river, is, in exclusion of all others, entitled by the act of 1807, c 25, to be the keeper thereof.
    Public ferries are to be established by the county court, only in cases where the “public convenience” requires it.
    If a public bridge is sufficient at all times to permit transportation safely and without delay, of all persons and effects, the mere fact that a ferry at or near the bridge, would produce competition, and thereby reduce the tolls of the bridge below the amount allowed by law, is not such a “public convenience” as will authorise the county court to establish the ferry.
    The owner of land on both banks of a river has not, as a matter of right, and merely because he is owner, the privilege of keeping a public ferry.
    The defendant in error, John Shelby, applied by petition to the county court of Davidson county, for liberty to- keep a public ferry near where the bridge crosses the Cumberland river at Nashville. The petitioner was the owner of the land on both banks of the river, and claimed the grant of the ferry as a matter of right conferred upon him by the act of 1807, c 25. The Nashville Bridge Company, on motion, were made defendants, and opposed the grant of the privilege claimed by the petitioner. A number of witnesses were examined, who proved, that in their opinion the public convenience would be promoted by establishing the ferry, as it would produce competition, and thereby lower the bridge tolls below what was allowed by law. Testimony was also introduced by the Bridge Company, to show a waiver or abandonment of the right to keep a ferry on the part of the petitioner, which, however, it is unnecessary to state, as the judgment of the court was not predicated upon it. The county court refused to grant the petition. The circuit court, upon appeal, reversed the judgment of the county court and established the ferry. From the judgment of the circuit court the Bridge Company appealed in error to this court.
    
      
      Geo. S. Yerg.er, for plaintiff in error.
    
      j. Campbell, for defendant.
   B/eese' J.

delivered the opinion of the court.

The right to receive compensation for the transportation: of travelers and others, across a river on a public highway, is at common law a franchise of the crown. And this from the nature; of the right is almost necessarily so. For no greater evil could well be imagined than the unrestrained power on the. part of individuals to exact from the traveler, who, cannot-brook delay or stipulate for terms, what ever cupidity might dictate. When a grant of this franchise is made to a subject,, it is deemed matter of common right that it should be madé to the owner of the soil where the ferry is to be kept. The franchise here belongs to the State, and the grant is made by our law, through the county court. The act of 1807, c 25,, secures to the owners of the land or of the landings, as against, strangers, the right to keep a ferry, if the public shall see proper to establish one, passing over their property. If the owner of the land will keep the ferry, that act makes it the duty of the county court to grant it to him; but whether a ferry shall be established or not, depends upon the will of the public and the convenience of the community, not upon any claim of individual right. Upon the ground of individual right, and without a grant from the public, no one is permitted by the act of 1764, c 3, § 4, to keep a ferry or transport per¿ sons or effects for pay within ten miles of any existing ferry, established by the public upon the same river. This is a restriction, not upon the power of the county court to establish ferries within any distance of each other, which they may see fit, but upon the claim of right on the part of individuals to keep a private ferry.

The county court, therefore, in this case, were under no obligation of duty imposed by the law to grant the petition of the defendant in error, upon the ground of any claim of right on his part. The only question for them to have determined was, whether public convenience made it proper to grant the prayer of the petitioner. The application is to have a public ferry established adjacent to and almost in iuxta position with Nashville Bridge, which it seems is m a state ot good re- . , ,, „ . e, J -tL ■ , pair, and capable at all times of transporting sately and without delay, all persons and all effects which require transportation, A ferry would' transport persons and effects with more delay and with less safety. Public convenience therefore, does not demand the establishment of a ferry, unless it could bé' called public convenience to reduce, by competition, the' tolls of the bridge below the amount conceded by the public to the Bridge Company in the charter of incorporation. And' surely this cannot be insisted on. In language it would be' a' solecism — in act it would be bad faith. The record presents other grounds in the conduct of the petitioner when the bridge was about to be built, and in his acquiesence since, which perhaps would bring us to the same result. But it is unnecessary to consider of them, because we are satisfied upon the general views above presented, that the county court acted properly in refusing the application of the petitioner, and we' affirm their judgment. The judgment of the circuit court must therefore be reversed.

■Judgment reversed,  