FERRY. A liberty to have a boat upon a river for the transportation of men, horses, and carriages with their contents, for a res. sonable toll. 42 Me. 9 ; 3 Zabr. N. J. 206 ; Woolrych, Ways, 217. The term is also used to designate the place where such liberty is exercised. 4 Mart. La. N. s. 426.
2. In England, ferries are established by royal grant or by prescription, which is an implied grant ; in the United States, by legis lative authority, exercised either directly or by a delegation of powers to courts, commis sioners, or municipalities. 7 Pick. Mass. 344 ; 15 id. 243 ; 11 Pet. 420 ; 20 Conn. 218; 8 Me. 365 ; 18 Ark. 19. Without such au thority no one, though he may be the owner of both banks of the river, has the right to keep a public ferry, 3 Mo. 470 ; 13 Ill. 27; 6 Ga. 130; 11 Pet. 420 ; Willes, 508 ; though after twenty years' uninterrupted use such authority will be presumed to have been granted. 2 Dev. No. C. 402 ; 1 Nott & M'C. So. C. 389 ; 4 III. 53 ; 7 Ga. 348. The fran chise of a ferry will, in preference, be granted to the owner of the soil, but may be granted to another ; and by virtue of the right of emi nent domain the soil of another may be con demned to the use of the ferry, upon making just compensation. 6 Barnew. & C. 703 ; 5 Yerg. Tenn. 189 ; 7 Humph. Tenn. 86; 2 Dev. No. C. 403 ; 9 Ga. 359 ; 6 Dan. Ky. 242; 8 Me. 365 ; 2 Cal. 262. If the termini of the ferry be a highway, the owner of the fee will not be entitled to compensation, 3 Kent, Comm. 421, n.; 4 Zahr. N. J. 718 ; 7 Grad. Va. 205 ; 1 T.B. Monr.Tenn.348 ; though in Pennsylvania a different doctrine prevails. 1 Yeates, Penn. 167 ; 9 Serg. & R. Penn. 31 ; 3 Watts, Penn. 219.
3. One state has the right to establish ferries over a navigable river separating it from another state or from a foreign territory, though its jurisdiction may extend only to the centre of such river ; and the exercise of this right does not conflict with the provision in the constitution of the United States conferring upon congress the power "to regulate com merce with foreign nations and among the several states," nor with any law of congress upon that subject. 11 Wend. N. Y. 586; 3 Yerg. Tenn. 387 ; 3 Zabr. N. J. 206; 4 id. 718 ; 2 Gilm. Va. 197 ; 16 B. Monr. Ky. 699. A state may at its pleasure erect a new ferry so near an older ferry as to impair or destroy the value of the latter by drawing away its custom, unless the older franchise be pro tected by the terms of its grant. 15 Pick.
Mass. 243 ; 6 Dan. Ky. 43 ; 9 Ga. 517 ; 6 How. 507 ; 16 id. 524 ; 7 Ill. 197 ; 13 id. 413 ; 1 La. Ann. 288 : 10 Ala. N. s. 37; 25 Wend. N. Y. 628. But if an individual, without authority from the state, erect a new ferry so near an older ferry, lawfully established, as to draw away the custom of the latter, such individual will be liable to an action on the case for dam ages, or to a suit in equity for an injunction iu favor of the owner of the latter. 3 Blackstone, Comm. 219 ; 6 Mees. & W. Exch. 234 ; 2 Crompt. M. & R. Exch. 432; 3 Wend. N. Y. 618; 3 Ala. 211; 17 Ala. N. s. 584; 16 B. Monr. Ky. 699; 4 Jones, No. C. 277; 3 Murph. No. C. 57.
4. The franchise of a ferry is an incorpo real hereditament, and as such it descends to heirs, is subject to dower, may be leased, sold, and assigned, 5 Comyns, Dig. 291; 12 East, 334; 2 McLean, C. C. 376; 3 Mo. 470 ; 7 Ala. N. s. 55 ; 9 id. 529 ; but, nevertheless, being a franchise in which the public have rights and interests, it is subject to legisla tive regulation for the enforcement and pro tection of such rights and interests. 10 Barb. N.Y. 223 ; 4 Zabr. N. J. 718 ; 11 B. Monr. Ky. 361; 9 Mo. 560.
5. The owners of ferries are common car riers, and liable as such for the carriage of the goods and persons which they receive upon their boats. They are bound to have their ferries furnished with suitable boats, and to be in readiness at all proper times to transport all who apply for a passage. 3 Mod. 289. 1 Salk. 12 ; 3 Humphr. Tenn. 245 ; 3 Penn. St. 342 ; 5 Mo. 36 ; 12 111. 344 ; 5 Cal. 360; 10 Mees. & W. Exch. 161 ; 3 Ala. N. s. 392. They must have their flats so made and so guarded with railings that all drivers with horses and carriages may safely enter thereon ; and as soon as the carriage and horses are fairly on the drops or slips of the flat, and during their transportation, al though driven by the owner or his servant, they are in the possession of the ferryman, and the owners of the ferry are answerable for the loss or injury of the same, unless oc casioned by the fault of the driver. 1 M'Cord, So. C. 439 ;.16 Eng. L. & Eq. 437 ; 14 Tex. 290; 28 Miss. 792; 4 Ohio St. 722; 7 Cush. Mass. 154. If, however, the ferry be rented, the tenant and not the owner is subject to these liabilities, because such tenant is pro hac vice the owner. 1 Ala. 366 ; 3 id. 160 ; 12 Ired. No. C. 1; 26 Barb. N. Y. 618 ; 22 Vt. 170. See Washburn, Easements.