Opinion
June Term, 1853.
In an indictment for a nuisance in not keeping a ferry in repair, where the only question was as to the present ownership of the land, to which the ferry had always been appurtenant, and evidence was offered tending to show that the defendant had purchased the same: Held, it was no error in the court below to charge the jury that if the defendant was the purchaser of the former owner's estate in the land, they might find that he was the proprietor, and therefore guilty.
(The case of Biggs v. Ferrell, 34 N.C. 1, cited and approved.)
THE defendant was indicted for a nuisance, in not keeping a ferry and boat in repair. On the trial before Manly, J., at CRAVEN, on the last Spring Circuit, it appeared in evidence that the ferry in question and the adjoining plantation had been owned by Oliver H. (224) Street, as tenant in common with his brother, Stephen, but for two years immediately previous to the finding of the bill of indictment, the said Oliver had been insolvent. After he had become insolvent, the defendant, who was his uncle, removed to the plantation to which the said ferry was appurtenant; and a witness was called who testified that the defendant told him that Street did not own anything. There was evidence also of general reputed insolvency, and that he, Oliver, had rented before his insolvency, and continued to rent up to the finding of the bill, the moiety of the land and ferry belonging to his brother, Stephen. Oliver continued to occupy in common with the defendant the plantation down to the finding of the bill — he, the said Oliver, superintending the ferry and receiving the tolls. No deed or conveyance for the land was exhibited; nor was there writing or proof of any kind as to the nature of Street's occupancy. The ferry was proved to be a nuisance.
No counsel for defendant in this Court.
Attorney-General for the State.
The only question was as to the defendant's ownership and responsibility. And his Honor left it to the jury to decide this question, informing them that if Willis was the purchaser of Street's estate in the land whereof the ferry had always been an appurtenant, in the absence of all proof of its being excepted, and in view of Street's general bankruptcy, they might find that the defendant was the proprietor of his, Street's half of the ferry, and responsible to the public for its sufficiency. The jury returned a verdict of guilty accordingly, and after an ineffectual motion for a new trial, the defendant appealed from the judgment against him to the Supreme Court.
It is stated in the bill of exceptions that the question raised on the trial was, whether the defendant was owner of the ferry which was proved to be a nuisance. It does not seem to have been disputed that there was testimony sufficient to be submitted to the jury, tending to show that the defendant had purchased the interest of his nephew, Oliver H. Street, in the tract of land to which the ferry (225) was appurtenant. Of that tract of land and the ferry the said Oliver had, up to the time when he became insolvent, been tenant in common with his brother, Stephen Street, and had rented the ferry of his brother, kept it, and received the tolls. It appears that he continued after his insolvency to rent his brother's share of the ferry and to receive the tolls, and the question was, whether, if the jury should find that the defendant had purchased his, Oliver's part of the land, his share in the ferry had passed with it. His Honor held, and so charged the jury, that in the absence of proof that the ferry was excepted, it did pass with the land as appurtenant to it. The charge was, we think, fully supported by the principle recognized by this Court in the case of Biggs v. Ferrell, 34 N.C. 1 — to wit, that where an individual owns land with a franchise annexed, as a ferry or market, and transfers the land in fee, or for any less estate, "then the franchise passes as an incident; like rent, which passes with the reversion, as incident thereto."
There was no error in the charge of the court; and this opinion must be certified to the Superior Court of Law for the county of Craven, that it may proceed to judgment according to law.
PER CURIAM. Judgment affirmed.
Cited: Haithcock v. Manufacturing Co., 72 N.C. 414.