Fortain v. Smith

Van Fleet, J. Action to restrain and enjoin defendants from maintaining a ferry.

The complaint alleges that the board of supervisors of Del Norte county, in July, 1891, granted to plaintiff and one William T. Bailey a franchise to establish and maintain a public toll ferry, at a certain point on the Klamath river, in said county, on the line [495]of travel between that county and the county of Humboldt—said franchise to run for a period of twenty years from the granting thereof; that in accordance with the franchise so granted the ferry was duly established in the year 1891; that thereafter, and prior to the 1st of January, 1895, plaintiff became the sole owner of said ferry and franchise, by purchase from Bailey of all the latter’s rights and interest therein; and that ever since he has remained such owner, and has maintained, operated, and conducted said ferry, and has expended large sums of money in equipping the same with boats and other apparatus, etc.

That in August, 1895, the defendants wrongfully and without authority established a ferry for the carriage of passengers and freight on said river contiguous to and within one mile of plaintiff's said ferry, and has since, without right or authority, maintained such unauthorized ferry, and has continued to carry freight and passengers across said river in violation of plaintiff’s rights; that these acts of defendants have operated and do operate to draw from plaintiff’s ferry a large portion of the custom of the traveling public, and have resulted in greatly diminishing plaintiff's business and the value of his said franchise, and have inflicted upon plaintiff injury which is beyond pecuniary estimation. That the defendants threaten to continue the operation and maintenance of their said ferry, and that such acts, if permitted, will wholly destroy the value of plaintiff's franchise and property, and inflict upon him irreparable injury, for which grievance he has no adequate remedy at law.

The prayer was that defendants be restrained from maintaining their ferry at any point on said river within the distance of one mile from plaintiff's ferry.

The complaint was verified, and upon it the court granted a temporary injunction. Defendants demurred to the complaint as not stating a cause of action, and upon the same ground moved the vacation of the injunction. The court sustained this motion and dissolved [496]