Conner v. Paxson

1 Blackf. 168, 1822 Ind. LEXIS 5

• Court: Indiana Supreme Court
• Decided: May 7, 1822
• Status: Published

Opinion

Scott, J.

In support of the judgment, it is alleged that Conner, not being the owner of the land on the water side of Water street, was not entitled to receive a license to keep a ferry; and that his grant, is therefore void.' On the other side it is contended, that, by a liberal construction, the provisions of the statute would justify the grant to Conner; and that this statute ought to have a liberal construction. We think it unnecessary at present to decide this question. Conner obtained his grant of a ferry from the proper authority. He was bound, on obtaining his grant, to give bond for the faithful performance of the duties connected with it. He could not defend himself against an action brought on that bond, by pleading the illegality of his own grant. The grant to Conner is of record; it is a public act of a legal tribunal on a subject within their jurisdictíon; and is presumed correct until reversed or set aside by competent authority. It is unreasonable, that a man should be liable to pay damages for exercising a right which he had obtained from a legal source, and which he was bound by a bond, and by the laws of his country, to exercise faithfully. Such a proceeding is manifestly contrary to justice. To impeach the validity of a public grant of record in this collateral way, operates as an unfair surprise upon the grantee; and is calculated to supersede and abolish the more safe and easy practice, which has been sanctioned by the experience and wisdom of ages. If the commissioners acted incorrectly, their proceedings should be set aside by a proper tribunal; but while the grant remained in force and unrepealed, it was a good defence against any action brought against the grantee for the exercise of the rights granted ; and ought to have been admitted as a good defence in this case. We think the instruction given by the Court to the jury, and the verdict and judgment, clearly erroneous

(1).

Nelson, for the plaintiff. Dewey, for the defendants.

Per Curiam.

The judgment is reversed, with costs. To bé certified, &c.

The judgment was erroneous on another ground. The statute authorizing the grant of a ferry gives a penalty in case of disturbance; and the party injured is confined to the statutable remedy. Vide Almy v. Harris, 5 Johns. R. 175. — Lang v. Scott, Nov. term, 1825, post.