THE STATE ex rel. DRIVER, et al. versus THE COMMISSIONERS of Roads and Revenue of Talladega, 3 Port. 412

Hitchcock, C. J. This is a writ of error from the Circuit Court of Talladega County, to a judgment of that Court, refusing to award a peremptory mandamus to the Commissioners of roads and revenue of ¿.aid County, directing them to grant, to the relators, a license for a public ferry, over the Coosa river, at the mouth of the Kernulgee creek, in said county. The petition is filed in the name of the State, at, the relation of E. M.

Driver and others, stating that the petitioners became the owners, in Jan’y, í S34, of a fraction of land, immediately upon the eastern shore of the Coosa river, embracing the eastern bank of said river, to the water’s edge. That there are two public roads passing through said land — the one on the upper, and the other on the lower side of the Kemul-gee or Talladega creek, at its junction with the Coosa, That there is, on the western side of the Coosa, immediately opposite the said roads, on the eastern side of "the river, a public road, called the State road, leading from Tuskaloosa county to said Coosa river.

That no license to establish a public ferry lias been granted by the.commissioners’ court of roads 'and revenue of Talladega county, across said river, where said roads meet, nor within two miles thereof. That the public convenience requires the establishment of such a ferry. That the petitioners, as the owners of the land, on the eastern side of the river, are en-tilled, as they believe, to a license, to establish a public ferry, from the eastern bank of said river.

That they made an application, in writing, to the Court of roads and revenue for the county of Talladega,'at the May Term, 1834, of said court, for a license.— That they made manifest to said court, at September term, 1834, (to which' term said petition was continued,) their title to said land, and all the other facts-in their application, as they were advised, necessary to entitle them to the license for the ferry. .That the said Court determined they had no authority to-establish the ferry in the county of Talladega, upon said application, because the same would be within two miles of a ferry, .licensed by the counly court of Shelby county, on the western bank of said river— . and rejected the petition of the relators for that reason.

On this petition, the Circuit; court of Talladega county, granted a rule upon the defendants, direct--ing them, either to set aside their said order and grant, the petition, orto show cause for not so doing,, at the May Term, 1835, of said court. The court of roads and revenue, at the September Term of die circuit, court, for cause, in answer to-the rule, state, that upon the investigation of said application, one Louis S.

Tularn, by eertian parol and record testimony, procured by him, from the com-missir,ners of roads and revenue of Shelby county, satisfactorily convinced them,'Unit there was established at said place, for which ihe petitioners had made application, a ferry, which said ferry had re--ceived the sanction of the .legislature of the State of Alabama, and the repeated sanction of the legally constituted authorities of Shelby county.

That, therefore, they, according lo their construction of the statute regulating the establishment of ferries, did not consider themselves authorised to grant the license applied for, by the relators ; upon the filing of which, the Circuit, court refused to grant the man* damus, and dismissed the petition. Many points have been ¡nado by the counsel, on each side, which have been very elaborately argued; to which the court has listened, with attention and pleasure.

The first and only one, to which the Court has found it necessary to investigate, is, whether the rela-tors have; in ibeir petition, established a right, in to the thing for which they have applied ? This is an indispensable requisite, in appli-for a mandamus; and without which,.none will be granted. It. was held in lho case of Dyer vs.

The Tuskaloosa Bridge Company, and is admitted here, that u the regó hit i tig and keeping in repair, roads,bigh-ways, bridges and ferries, for public use and convenience, is an exercise of the supreme authority of the State.” That, upon this ground the Legislature has delegated certain authority to the commissioners of roads and revenue in each county; and it is on the ground that the proper tribunal lias refused to grant the relators, by, as they contend, an erroneous construction of these laws, the rights which are secured to t(hem under the sajne, that this application made.

The only provision applicable to this question, is to he found in the 171 h

section of the act. relating to roads, “ when bridges and ferries; land is owned by the which declares, same person, on that both. sides of a river, over which it may be necessary to establish a ferry, such person shall have the ferry established on his land, on both sides, if he desire it, unless public convenience would be, thereby, prejudiced.

But if the 1 and of s.uch person is most suitable, on one side of such river, and not on the other, then the court may establish such ferry, so as to produce the most public good, and least private injury; but no public ferry shall be established within less than two miles, by water, of any ferry already established; unless on a river at, or within two miles of any town.” To bring the relators within the provisions of this section, three things, are necessary :• first, 'that they should be the owners of the land, on both sides of the river; second, that their landings should be the most suitable; and third, that no public ferry shall have been established within two miles, by water, of .the place, at which they wish to have theirs established.

In the case before the Court, the petition shows, not only that the relators are not the owners of the soil, on both sides of the river, but that there was, at the time of the application, a ferry already established, by the County Court of roads and revenue, of' the County of Shelby. These two facts being admitted, either of them is decisive of this case.

"Without the ownership of the land, on both sides, the right can not be exclusive in the relators, in any event: and, the existence of the ferry, by order of a Court, having jurisdiction of the subject matter, whether exercised rightfully or not, is fatal to this application. — It involves an investigation of the rights of third persons, which, can not he questioned, in this mode of proceeding. There is no prescriptive right to a ferry, in this State — the ownership of the land, on the banks of our navagable streams, gives none. The condemnation of the lands through which a public road may run, under the 2nd

section of the act of 1821, giv-owner compensation, is ail that he has aright to claim. This secures the use of the banks, for the purpose of the ferry ; and unless the relators can bring themselves within the provisions of the 17th

section of.the act above alluded to, they have no right to complain. Had there been no ferry established, at the place applied for, and it appeared, that there was a pubic road at that place ; and also, that the ferry applied for, was within the jurisdiction of the inferior Court; this Court would have granted an order to compel that Court to establish the ferry, and grant a license; but they would not have directed to whom it should issue. This can only be done, when the relators shew a right, in themselves, to the exclusion of all others.

In all other cases the Court of roads and revenue is invested with a discretion, which is not within the revising power of this Court, in a proceeding of this kind. It is contended, by the counsel for the plaintiffs in error, the river being, the dividing line, between the two Counties of Shelby and Talladega, each County has a right to establish a ferry, on its side; and that, in such a case, the prohibition, that no ferry shall be established within, two miles, by water, of another, does not apply. We can not yield to the force'of this reasoning.

The licensing and use of a ferry, necessarily require the use of both banks of a river': andj if one is established, on one side, it excludes the idea of the legitimate establishment of another, on the opposite side,- *or within two miles, by water, on either side. Whether there is not a necessity" for further legislation, in a case where a navigable stream divides two counties, is a question which does not properly arise in this case. We, therefore, forbear to express any opinion upon it. We place our decision upon the ground that the relators have not shewn any right to the ferry, under the

section alluded to. Whether the return is sufficiently explicit; also, whether the discretion, which is vested in the Court of roads and revenue, (admitting the right to have been made out,) has been exercised : and, whether a writ of error would not be the' proper mode of revisal — are questions, we express .no opinion upon. Let .the judgment be affirmed. 2 Aik.Dig 353 1 Cranch, 137; 8East,219; 1Wen 318; 3Dal. 42; 3 Bin 273; 5ib 87-6 ib 456; and 556; 4 Bacon 505-1 Yates 46; 2Strau 880 2 Porter's Rep. 303. Aik. Dig. 363, §27. Aik. Dig. 359,§13.