Almy v. Harris — 5 Johns. 175

Majority

p. 175

Almy against Harris.

Headnote

A person having a right of ferry, granted under the act to regulate ferries within this state, cannot maintain ail ac~ tion on the cases for the disturbance of his right. His only remedy is for the penalty given by the statute.

If a statute gives a remedy in the affirmative, without a negative, express or implied, for a matter which was actionable at the common law, the party may sue at the common law, as well as upon the statute.

ON certiorari from a justice’s court.

Harris sued Almy in the court below, in ail action on the case, for disturbing him in the enjoyment of a ferry across the Cayuga lake, at the village of Cayuga, granted to Harris, by the courts of common pleas, for the counties of Cayuga and Seneca. A judgment for damages was given in favour of Harris, on which the certiorari was brought to this court. Several errors were assigned ; but it will be sufficient to state the opinion of court.

Sedgwick, for the plaintiff in error»

Richardson, contra.

There is one error which we consider fatal, and for that we think there must be a judgment of reversal. The act to regulates ferries within this state, (20 sess. ch. 64. sec. 1.) prohibits any person, except Within the southern district, the counties of Orange and Clinton, from keeping or using a ferry, for transporting across any river, stream or lake, any person ór persons, or any goods or merchandise, for profit or hire, unless licensed in the manner directed by that act, under a penalty of five dollars.

If Harris had possessed a right, at the common law, to the exclusive enjoyment of this ferry, then, the statute-giving a remedy in the affirmative, without a negative expressed or implied, for a matter authorised by the common law, he might notwithstanding the statute, have his remedy by action at the common law. (l Com. Dig. Action on Statute, (C.) But Harris had no exclusive

p. 176

right at the common law, nor any right but what he derived from the statute. Consequently,* he can have no right, since the statute, but those it gives; and his remedy, therefore, must be under the statute, and thfe penalty only can be recovered.

Judgment reversed.