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 middle of such river ; and the exercise of this right does not conflict with the pro vision in the constitution of the United States conferring upon congress the power "to regulate commerce with foreign nations and among the several states," nor Noth any law of congress upon that subject; Corpora tion of Memphis v..Overton, 3 Yerg. (Tenn.) 387; State v. Freeholders of Hudson County, 23 N. J. L. 206; Mills v. County of St. Clair, 2 Gilm. (Ill.) .197; Tugwell v. Ferry Co., 71 Tex. 480, 9 S. W. 120, 13 S. W. 654. In Con way v. Taylor, 1 Black (U. S.) 603, 17 L. Ed. 191, a ferry francnise on the Ohio was held to be grantable under the laws of Kentucky to a citizen of that state who was a riparian owner on the Kentucky side. It was said not to be necessary to the validity of the grant that the grantee should have the right of landing on the other side. In Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365, 2 Sup. Ct. 257, 27 L. Ed. 419, a state was held to have the power to impose a license fee upon ferry keepers living in the state for boats which they owned and used in convey ing from a landing in the state passengers and goods across a navigable river to an other state, and this was not a regulation of commerce ; but a tax upon persons owning and running tow boats from the Gulf of Mexico to New Orleans was held void as a regulation of commerce ; inoran v. New Or leans, 112 U. S. 69, 5 Sup. Ct. 38, 28 L. Ed. 653. In Gloucester Ferry Co. v. Pennsyl vania, 114 U. S. 196, 5 Sup. Ct. 826, 29 L. Ed. 158, Pennsylvania attempted to tax the capital stock of a corporation the business of which was the ferrying of passengers and freight across the Delaware river to New Jersey. The ferry boats were registered in New Jersey and were taxable there. The court held it to be an interference with in terstate commerce. In Louisville & J. Ferry Co. v. Kentucky, 188 U. S. 385, 23 Sup. Ct. 463, 47 L. Ed. 513, a Kentucky corporation operating a ferry across the Ohlo river was held to be deprived of its property without due process of law by the action of Kentucky in including for purposes of taxation in the valuation of the franchise derived by the corporation from Kentucky the value of an Indiana franchise for a ferry from the In diana to the Kentucky shore, which such corporation uad acquired. No portion of the business of a ferry which is part of an inter state railway is under the control of the state; the state authorities have no power to regulate the fares of passengers whether railroad passengers or not; New York Cent. & H. R. R. uo. v. Board of Freeholders, 227 U. S. 248, 33 Sup. Ct. 269, 57 L. Ed. -, re versing New York Cent. & H. R. Co. v. Board of Freeholders, 76 N. J. L 664, 74 Atl. 954, 16 Ann. Cas. 858. The granting of a tempo rary license to operate a ferry within the city limits, is valid; Carroll v. Campbell, 108 Mo. 550, 17 S. W. 884. A state may at its pleas ure 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 protected by the terms of its grant ; In re Fay, 15 Pick. (Mass.) 243; Carter v. Kalfus, 6 Dana (Ky.) 43; Shorter v. Smith, 9, Ga. 517; West River Bridge Co. v. Dix, 6 How. (U. S.) 507, 12 L. Ed. 535; Fanning v. Gregoire, 16 How. (U. S.) 524, 14 L. Ed. 1043; Mills v. St. Clair County, 2 Gil. (III.) 197; Green v. Ivey, 45 Fla. 338, 33 South. 711; Davis v. Police Jury, 1 La. •Ann. 288 ; Mayor, etc., of City of Columbus v. Rodgers, 10 Ala. 37; Costar v. Brush, 25 Wend. (N. Y. 628. See Bridge water Ferry Co. v. Bridge Co., 145 Pa. 404, 22 AU. 1039; Wheeling & B. Bridge Co. y. Bridge Co., 138 U. 8. 287, 11 Sup. Ct. 301, 34 L. Ed. 967.
A ferry franchise is not infringed by the grant of a bridge franchise, though the bridge diverts the travel from an ancient fer ry; [1908] 1 Ch. 41. But if an individual, without authority 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 damages, or to a suit in equity for an injunction in favor of the owner of the latter ; 6 M. & W. 234 ;
Nixon v. Reid, 8 S. D. 507, 67 N. W. 57, 32 L. R. A. 315 ; Harrell v. Ellsworth, 17 Ala. 584; City of Newport v. Taylor's Ex'rs, 16 B. Monr. (Ky.) 699; Taylor v. R. Co., 49 N. C. 277; Long v. Beard, 7 N. C. 57 ; but he may transport his own goods in his own boats where another has an exclusive right of fer ry; Alexandria, W. & K. Ferry Co. v. Wisch, 73 Mo. 655, 39 Am. Rep. 535 ; Capital City Ferry Co. v. Transp. Co., 51 Mo. App. 228; Tugwell v. Ferry Co., 74 Tex. 480, 9 S. W. 120, 13 S. W. 654. He may not, however, of fer the free use of his boats to his custom ers as an inducement to secure their trade where he thereby diverts their patronage from a lawfully established ferry; Inhabit ants of Peru & Dixfield v. Barrett, 100 Me. 213, 60 Atl. 968, '70 L. R. A. 567, 109 Am. St. Rep. 494. The grant to a city by the legis lature of the right of licensing ferries, does not empower the city to grant exclusive fer ry privileges ; Carroll v. Campbell, 108 Mo. 550, 17 S. W. 884.
The franchise of a ferry is an incorporeal hereditament, and as such it descends to heirs, is subject to dower, may be leased, sold, and assigned; 5 Com. Dig. 291; 12 East 334; Bowman v. Wathen, 2 McLean, 376, Fed. Cas. No. 1,740; Stark v. Miller, 3 Mo. 470; Garrett v. Ricketts, 9 Ala. 529 ; Capital City Ferry Co. v. Transp. Co., 51 Mo. App. 228 ; McCearly v. Swayze, 65 Miss. 351, 3 South. 657 ; and when created by act of the legislature can be conveyed only 'by deed ; Gunterman v. People, 138 Ill. 518, 28 N. E. 1067; but, nevertheless, being a franchise in which the public have rights and interests, it is subject to legislative regulation for enforcement and protection of such rights and interests ; Cooley, Const. Lim. 732; Ben son v. Mayor, etc., 10 Barb. (N. Y.) 223; Chosen Freeholders of Hudson, Co. v. State, 24 N. J. L. 718; City of New Newport v. Tay lor's Heirs, 11 B. Monr. (Ky.) 361.
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 wish suitable boats, and to be in readiness at all proper times to transport all who apply for a passage ; Ang. High. 437; Wallen v. McHenry, 3 Humphr. (Tenn.) 245; Pomeroy v. Donald son, 5 Mo. 36 ; Fisher v. Clisbee, 12 III. 344 ; May v. Hanson, 5 Cal. 360, 63 Am. Dec. 135 ; 10 M. & W. 161; Evans v. Rudy, 34 Ark. 383; Koretke v. Irwin, 100 Ala. 323, 13 South. 943, 21 L. R. A. 787. 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 car riage and horses are fairly on the drops or slips of the flat, and during their transporta tion, although 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 occasioned by the fault of the driver ; Cohen v. Hume, 1 McCord (S. C.) 439 ; 16 E. & Eq. 437; Albright v. Penn, 14 Tex. 290; Richards v. Fuqua's Adm'rs, 28 Miss. 792, 64 Am. Dec. 121; Wilson v. Hamil ton, 4 Ohio St. 722; White v. Winnisimmet Co., 7 Cush. (Mass.) 155 ; they are not re quired to have railings at the end of their boats when not in actual use, so as to pre vent runaway teams from entering and pass ing 'over the same to the river; Evans v. Goodrich, 46 Minn. 388, 49 N. W. 188; see NEGLIGENCE; but it is also well settled that if the owner retains control of the property himself and does not surrender the charge to the ferryman, such strict liability does not attach, and he is only responsible for actual negligence ; Harvey v. Rose, 26 Ark. 3, 7 Am. Rep. 595; Wyckoff v. Ferry Co., 52 N. Y. 32, 11 Am. Rep. 650; 10 M. & W. 546; 36 Am. Rep. 504, n. See Printup v. Patton, 91 Ga. 422, 18 S. E. 311. If the ferry be rented, the tenant and not the owner is subject to these liabilities, because such tenant is pro hac vice the owner ; Biggs v. Ferrell, 34 N. C. 1; Norton- v. Wiswall, 26 Barb. (N. Y.) 618; Felton v. Deall, 22 Vt. 170, 54 Am. Dec. 61. See article in 4 Am. L. Reg. N. S. 517; 19 id. 148; Washb. Easements; Ang. Water Courses.
See COMMERCE; TAXATION ; RATES.