Haithcock Hearne v. . Swift Island Mfg. Co.

72 N.C. 410

• Court: Supreme Court of North Carolina
• Decided: January 5, 1875
• Status: Published

Opinion

Peaeson, C. J.

The plaintiff’s case rests upon the ground' that by the deed conveying to him the land, on one side of the* river, “with all the appurtenances thereto belonging,” he acquired title to one half of the ferry. In other words, the ownership of the land on one side of the river draws to it one-half of the ferry. This proposition cannot be maintained. We concur with his Honor in the conclusion that the plaintiff did not make out a case.

It is true, where the right to a public ferry is annexed to a tract of land, as “appurtenant thereto,” a conveyance of the land “ with its appurtenances ” passes the ferry ; this is assumed to be the principle of law in State v. Willis, Busb. 223, and in Biggs v. Ferrell, 12 Ired., 1. But in those eases the franchise of a public ferry was annexed and appurtenant to the land; whereas, in our case the franchise “to keep the ferry and receive the tolls, for ought that appears is a right “ en gt'oss ” like a right of common or an advowson “ en gross'’ and has never been annexed to the land and made appurtenant thereto, either on the one side of the river or the other or to the land lying on both sides of the river at the termini of the ferry.

The ferry was established by the Plank Road Company under the authority of an Act 16th February, 1859, and was used in connection with the plank road and as a part thereof.

It is set out as a fact in the case : “ The plank road having fallen into decay and being discontinued as a turnpike, one Christian, the owner of the land on both sides of the river, claimed the franchise of the ferry, and kept it up until his death.” After his death the land, on one side of the river, was bought by the plaintiff, and the land on the other side of the river was bought by the defendant. The deeds to both being for the lands, together with “all the appurtenances thereto belonging,” and the defendant has since claimed the ferry and kept it up. The charter of the Plank Road Company may have been forfeited for nun-use, but there has been no judgment, so far as the case discloses by which the charter is vacated ; so according to facts before us, the plank road is still in existence, and is the owner of this ferry, and above all there is no evidence that Uhristian ever acquired title to the ferry, or in any way annexed the right to the ferry as an appurtenant either to the tract of land which he owned on the Stanly side or to the tract which he owned on the Montgomery side, or to both. So for might that appears the title to the ferry is still in the Plank Road Company, and if it was acquired by Christian, it does not appear that he attached it as appurtenant to his land on the one side of the river or the other, or to both, or whether was not kept by him as a franchise “ en gross.”

The plaintiffs did not prove title.

iNo error.

PeR Curiam. Judgment affirmed.