Rees v. Lawless

16 Ky. 184, 1814 Ky. LEXIS 4

• Court: Court of Appeals of Kentucky
• Decided: April 15, 1814
• Status: Published

Opinion

Opinion of the Court, by

Ch. J. Boyle.

THIS is a writ of error to a judgment for the plaintiff, in a traverse of an inquisition finding the plaintiff in the traverse guilty of a forcible entry upon a ferry, &c.

The only question which is deemed material to be decided, is, whether a warrant for a forcible entry will lie for forcibly taking possession of a ferry, and the banks and shores of a river, where the party so taking possession has a right of ferry established.

We are of opinion it will not lie in such a case. A ferry is of that description of property, which, in technical language, is denominated incorporeal, and which in legal consideration is not tangible. Like a right of way or of common, or other incorporeal right, no entry in point of fact, can in strict propriety be said to be made upon it; nor could the sheriff, in case of a judgment of restitution, deliver possession. In such a case an ejectment would not lie, and upon the same principle a warrant for a forcible entry would not. See Chitty on Plead. 188, and the authorities there cited.

The use of the banks or shores, is a necessary incident to the ferry, and is virtually included in, and composes a part of the right of ferry, and must, therefore, as an incident, follow its principal.

Judgment affirmed with costs.