Paynter v. Miller , 118 Ky. 29 ( 1904 )

Opinion of the court by

-CHIEF JUSTICE BURNAM

Affirming.

The appellants, George B. Paynter and James Fullerton, petitioned tbe Greenup county court, at its August term, 1903, to establish a ferry from Fullerton, Ky., across the Ohio river, to Portsmouth, and to grant them the privilege of operating the ferry, in accordance with the provisions of chapter 49 of the Kentucky Statutes of 1903. They allege in their petition, in substance, that they had complied with all the preliminary provisions required by the statute; that a steam ferry was being operated between these two points by one Isaac Miller, a nonresident of Kentucky, who ’had purchased the privilege of doing so from the administratrix of George Winn>, to whom the privilege of operating a ferry between Fullerton, Ky., and Portsmouth, Ohio, had been granted on the 5th of December, 1892, at a regular term of the Greenup county court; that on the 6th day of December, 1897, George D. Winn had renewed his covenant with the Commonwealth of Kentucky for the ferry privilege, as required by law; that some time prior to March, 1902, George D. Winn died, and that his wife, as his administratrix, had sold the ferry privilege previously granted •to her husband to Isaac Miller, of Portsmouth, Ohio, who had also acquired the ferry landing on both the Kentucky and Ohio shores by purchase; that at a special term of the Greenup county court held on the 15th of March, 1902, an order was entered by the court ratifying the previous sale and transfer of the ferryboat and' ferry right, and at the same time a regrant was made to Miller of the ferry privilege for a term of twenty years from that date, and that he executed a bond therefor as required by law and an order was entered fixing the tolls; that prior to the 21st day of July, 1903, Miller sold and transferred the privilege which had been granted to him to the Fullerton & Portsmouth Ferry Company, a corporation organized under the laws of the State of Kentucky, with the consent of the administratrix of the estate of Geo. Winn and B. F. Bennett, who held purchase-money liens on the ferry property, and that on that day the Greenup county court ratified the sale of the ferry privilege, and renewed the grant to the ferry company for a term of twenty years; and that the company had executed bond as required by law for the faithful performance of their duties thereunder. Petitioners allege that both the grants to Miller and the ferry company were void, because’ made at a special term of the county court, and without the notice required by section 1804 of the Kentucky - Statutes of 1908. They also allege that - Miller had forfeited all right to -operate the ferry before his sale and transfer to the ferry company, for the reason that more than one year had elapsed after his purchase from the- administratrix of Winn before his transfer to the ferry company as required by subsection 3 of section 1808 of the Kentucky Statutes of 1903. The appellee, Isaac Miller, filed a demurrer to appellant’s application, which was sustained, and their application dismissed. They thereupon appealed to the Greenup circuit court, and appellee again demurred to their petition, which was sustained, and the petition dismissed. Plaintiffs in the application now appeal to this court.

Chapter 49, section 1800, of the Kentucky Statutes of 1903, provides that- “'the several county courts shall have jurisdiction to establish ferries and grant ferry privileges upon any river or stream in or adjoining their respective counties for not-exceeding twenty years; that -the ferry shall be established at the instance and for the benefit of the owner of the land on which it is located, or some one who has bought from the owner the privilege of using the same for that purpose; that no application to establish' a ferry shall be heard unless notice of the application shall have been posted at the court bouse door of the county-on tbe first day of the term of the court next preceding that at which the application is made.” .Subsection 3 of section 1808 provides that “when sale is made of a ferry right, or lease thereof, it must be with leave of the court, and the purchaser or lessee must execute covenant, with sufficient surety, in lieu of former covenant. ... If the estate be for a term of years, the personal representative must, within one year after administration, sell the right with the assent of the court, and. the purchaser give such new covenant. A non-resident owner of a ferry right shall sell the same to a resident citizen of this State, -within a year after his removal or the accrual of his right, with leave of court, and the purchaser give such new covenant. Upon failure to comply with any requisition of this subsection, the court shall revoke the grant, the party having been first summoned, or, if a non-resident, warned by an order posted at the court house door, on a court day of a previous term, and by publication in some newspaper printed in the county, if any such there be.” Under these provisions of the statute, the administratrix of George D. Winn had the right, with the consent of the Greenup county court, to sell the residue of his term as ferryman; and whilst it was incumbent upon her non-resident purchaser to transfer the right acquired by him to a resident of this State within a year after his acquisition thereof, the failure to do so did not per so avoid the lease, as it was voidable only at the instance of the lessor, or the State or county authorities in a direct proceeding instituted for that purpose. And it was too late after the lease to a Kentucky corporation with the consent and approval of the county to raise this question. See Owens v. Roberts, 69 Ky., 608. Section 1058 of the Kentucky Statutes of 1903, provides that “special terms of the county court may be held at any time for the transaction of any business except the probating of a will or granting a tavern, liquor or druggist license.” It is unnecessary, in the determination of the rights of appellant in this case, that we should decide whether the notice required by section 1804 as a condition precedent to the establishment of a ferry also applies to an application for the renewal of a grant to operate a ferry which has already been established. The co.urt properly sustained a demurrer to appellant’s original and amended petitions.

Judgment affirmed.