
    The People, Resp’ts, v. Philip Mago, App’lt
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1893.)
    Ferries—Excursion boat for picnic parties is not a ferry.
    The use of a small steam yacht in conveying passengers for hire on Sundays and holidays, when not otherwise engaged by excursion parties, from a village to private grounds used for picnic purposes, and not connected with any highway, does not constitute a maintenance of a ferry within the meaning of § 416 of the Penal Code.
    Appeal by the defendant from a judgment of conviction of the court of sessions of Brie county.
    
      T. C. Becker, for app’lt; Jno. Cunneen, for resp’ts.
   Dwight, P. J.

The judgment convicted the defendant of a misdemeanor, vizi: of maintaining a ferry without authority of law, under § 416 of the Penal Code. At and before the time named in the indictment and down to the time of the trial the defendant was the owner of a small steam yacht which he employed, on Sundays and holidays, mainly in conveying passengers for hire from the village of Tonawanda across the east branch or channel of the Niagara river to a place of public resort on Grant Island, known as “ Sour Springs Grove,” and back again, though he did occasionally charter his boat to take parties for the trip around the island. Sour Springs Grove was private property, comprising a house of entertainment, picnic grounds, merry-go-rounds, and a wharf at which boats might land. The wharf was not connected with any public highway, but was maintained by the proprietors for the accommodation solely of visitors to the-grove. It was at the request of the proprietors that the defendant began to run his boat to the grove, and they gave him the use of the wharf for that purpose.

The boat’s berth, when tied up, was within the mouth of Tonawanda creek, at which place, when about to run to Sour Springs, the defendant took on such passengers as offered for the trip. After leaving the mouth of the creek he steamed up the river along the water front of the village three-fourths of a mile or more, stopping at any point where he was hailed to take on a passenger, and then passed diagonally across the stream to his destination.

We are of the opinion that the prosecution of the business or enterprise thus described was not the maintenance of a ferry within the intendment of the statute, supra ; we think it lacked some of the essential elements which are included in late and authoritative definitions of a ferry. In the case of the Mayor of New York v. Starin et al., 106 N. Y., 11; 8 St. Rep., 655, Judge Earl says: “ In a general sense it [a ferry] is a highway over narrow waters ” ; and, further, “ a ferry is a continuation of the highway from one side of the water over which it passes to the other, and is for the transportation of passengers or of travellers with their teams and vehicles and such property as they may have with them.” And in the Same v. New Jersey Steamboat Co. the same judge remarks: “ There was nothing in the structure of the. defendant’s boats which deprived them of the character of ferryboats; they were adapted to carry travellers with their horses, vehicles and other property, and hence they could engage in a ferry business.”

The American and Eng. Encyc. of Law defines a ferry “ a public highway of special description, and its termini must be in.places where the public have rights, as towns or vills or highways leading to towns or vills. .The right of the grantee is in the one caso an exclusive right of carrying from town to town ; in the other of carrying from one point to another, all who are going to use the highway to the nearest town or vill to which the highway leads on the other side;” citing Huzzey v. Field, 2 Crompt., M. & R., 442. The same compendium of law also quotes the following definition and remarks from the authorities cited: “A ferry is nothing more than the continuation of a road, and, as far as regards the authority of the state and general governments, does not differ from a toll bridge.” Steamboat James Morrison, Newberry’s Admr., 251. “A ferry is a highway for all the Queen’s subjects paying toll.” Ferry Co. v. Barker, 2 Exch., 149. “ Where a stream

crosses a public highway the continuity of the highway is not broken ; it does not end" on the one side of the stream and begin again on the other, byt continues across the stream, and the public for the purpose of travel, have the same right to go on the water over the highway that they have to pass along other portions of it But as a physical obstruction intervenes it is necessary that some convenient means of transportation shall be furnished, and the simplest and most economical in many cases is a ferry.” Sullivan v. Supervisors, 58 Miss., 799. These and similar expressions of the courts seem to indicate some essential elements or characteristics of a ferry which were absent from the enterprise conducted by the defendant. His route had no connection with a highway on either side of the stream ; his boat was incapable of transporting the property of his passengers beyond what they carried on their, persons or in their picnic baskets; his landing was on private property from which any of his passengers might be excluded at the pleasure of the owners ; he ran only on Sundays and holidays, and then made the1 trip across the river only when his boat was not chartered for an excursion elsewhere. In short he never carried travelers, but only excursionists, and his boat was a pleasure boat and not a ferry boat.

We think the case, as it stands upon the evidence before us, does not make out the offense of unlawfully maintaining a ferry, and that the judgmentof conviction must be reversed and a new trial ordered.

Judgment of the court of sessions of Erie county reversed and a new trial granted.

Lewis, Macomber and Haight, JJ., concur.  