municipality, cannot be arrested by an offer on the part of the landowner himself to erect a wharf.1 § 104 (68). Public and Private. - Wharves, piers, quays, and landing places may be either public or private. They may be, in their nature, public, although the property be owned by an individual. If private, the public have no right to use the erection without the owner's consent, express or implied;2 if public, they may be used by persons generally upon the payment of a reasonable compensation. Whether they are public or private depends, in case of dispute, upon circumstances, such as the purpose for which they were built, the uses to which they have been applied, the place where situated, and the character of the structure.3 § 105 (69). Duties and Rights of Owner. The keeping of a wharf or dock, erected and opened to the public, like the keeping of an inn, confers a general license to boats and vessels to occupy it for lawful purposes, a license which can be terminated only by notice 1 Waddington v. St. Louis, above cited; Iron Railroad Co. v. Ironton, 19 Ohio St. 299 (1869); Page v. Baltimore, 34 Md. 558 (1871); State v. Jersey City, 34 N. J. L. 390. Municipalities may under legislative grant build wharves and levees on streets bordering on the Mississippi River, and make or authorize the making of other improvements thereon; such as a steamboat depot building, for the storage of freight and the convenience of travellers. Barney v. Keokuk, 94 U. S. 324 (1876); s. c. below, 4 Dillon, 593; Ill. &c. Co. v. St. Louis, 2 Dillon, 70. Although its charter and the statutes give a city power to maintain wharves and collect wharfage, the legislature may law fully grant to a railroad company a portion of the water front for its own wharf purposes, free from the control of the city. Railroad Company v. Ellerman, 105 U. S. 166. 2 A town incorporated under the code of West Virginia has no power to assess and collect wharfage from the owner of a private wharf who uses it as the landing of a ferry of which he is the proprietor. Christie v. Malden, 23 W. Va. 667. 8 Dutton v. Strong, 1 Black (U. S.), 23 (1861). The owner of a private pier may, it was held in this case, cut loose a vessel attached to it without a license if the pier be thereby endangered, no matter how great the stress of the weather or the peril to which the vessel may be thereby subjected. That compensation is received for the use of a public wharf does not deprive it of its public character. Galveston Wharf Co. v. Galveston, 63 Tex. 14. Wharf: What constitutes. Upon a nontidal stream, any construction of timber or stone upon the bank, of such shape that a vessel may lie alongside of it, with its broadside to the shore, constitutes a wharf; and a paved street extending to the water's edge, and used by vessels as a place for receiving and discharging freight and passengers, may be so designated. Keokuk v. Keokuk, &c. Packet Co., 45 Iowa, 196 (1876). Expenditures in providing wharves is the basis of the municipality's right to collect wharfage. Railroad Co. v. Ellerman, 105 U. S. 166 (1881). A paved street extending a sufficient depth into the water, and used by the citizens generally for all purposes of a street and by vessels for a landing place, is a sufficient wharf to jus tify a city in charging wharfage on a nontidal stream like the Mississippi River. Keokuk v. Keokuk &c. Packet Co., 45 Iowa, 196, 206 (1876). and request to remove the vessel. When thus established, the owner at common law is, as respects the public, bound to keep it in good repair. In view of these obligations on the part of the owner of the wharf, the common law gave him the right to distrain for his wharfage or toll.3 By the common law, § 106 (70). Right of Riparian Owner. the riparian owner has the right to establish a wharf on his own soil, this being a lawful use of the land. The right is judicially recognized in this country, and riparian proprietors on ocean, lake, or navigable river have, in virtue of their proprietorship, and without special legislative authority, the right to erect wharves, quays, piers, and landing places on the shore, if these conform to the regulations of the State for the protection of the public, and do not become a nuisance by obstructing the paramount right of navigation. This right has been exercised by the owners of the adjacent land from the first settlement of the country. The right terminates at the point of navigability, unless special authority be conferred, because at this point the necessity for such erections ordinarily ceases. Such 1 Heeney v. Heeney, 2 Denio, 625; Nicoll v. Gardner, 13 Wend. 289 (1835); Lansing v. Smith, 4 Wend. 9; Dutton v. Strong, 1 Black, 23, distinguished from Heeney v. Heeney, supra; Chicago Dock Co. v. Garrity, 115 Ill. 155. Keokuk Packet Co., 45 Iowa, 196 (1876). If a city is entitled to the wharfage from public wharves, and the owner of a lot adjacent to such wharf receives wharfage, he is liable to the city therefor. Baltimore v. White (assumpsit), 2 Gill (Md.), sons and a city corporation, to the money collected for wharfage, may be tried in an action for money had and received. Murphy v. City Council, 11 Ala. 586 (1847). See Grant v. Davenport, 18 Iowa, 179. 2 A municipality owning a wharf is 444. The right, as between private perbound to exercise the same care as is required of an individual owner, for the convenience and safety of boats, &c., using it. Willey v. Allegheny, 118 Pa. St. 490. See, also, Watson v. Turnbull, 32 La. An. 856; infra, sec. 114. 8 Hale de Port. Maris, 77; Bradley on Distress, 133; Nicoll v. Gardner, 13 Wend. 289. The right of distress is regulated by statute in the city of New York, and it was there held, that where wharfage accrued in the seventh ward, the owner of the wharf might distrain therefor in the eleventh ward. 13 Wend. 289. See Lansing v. Smith, 4 Wend. 9, 21. Wharfage is not properly a tax, like that levied to support government, but rather compensation paid by owners of vessels for accommodation for their boats and merchandise. Swartz v. Flatboats, 14 La. An. 243 (1859); s. p. Keokuk v. 4 Nicoll v. Gardner, 13 Wend. 289, (1835), per Nelson, J.; Lansing v. Smith, 4 Wend. 9, affirming s. c. 8 Cow. 146. See observations of Finch, J., in Mayor v. Hart, 95 N. Y. 443, 457 (1884), as to nature of riparian rights and privileges. Heeney v. Heeney, 2 Denio, 625; Myers v. St. Louis, 82 Mo. 367; s. c. below, 3 Mo. App. 266; Union Depot Co. v. Brunswick, 31 Minn. 297; R. R. Co. v. Schurmeir, 7 Wall. 272; Yates v. Milwaukee, 10 Wall. 497; Weber v. Harbor Comm'rs, 18 Wall. 57; Potomac Steamboat Co. v. Upper Potomac &c. Co., 109 U. S. 672; Hohcken v. Penn. R. R. Co., 124 U. S. 656. Infra, sec. 107, and note. structures are presumptively lawful where they are confined to the shore, and no positive law is violated in their erection.1 1 Heeney v. Heeney, 2 Denio, 625; Thornton v. Grant, 10 R. I. 477 (1873); s. c. 14 Am. Rep. 701; Sherlock v. Bainbridge, 41 Ind. 35 (1872); s. c. 13 Am. Rep. 302; Wisconsin, &c. Co. v. Lyons, 30 Wis. 61; Dutton v. Strong (action of trespass by owner of vessel against owner of private pier for cutting the vessel loose), 1 Black (U. S.), 23 (1861), distinguished from Heeney v. Heeney, above cited. Same principle reaffirmed, Railroad Co. v. Schurmeir, 7 Wall. 272; Yates v. Milwaukee, 10 Wall. 497; approved, Weber v. Harbor Comm'rs, 18 Wall. 57 (1873); Illinois v. Illinois Central R. R. Co. (Chicago lake front case), 33 Fed. Rep. 730; State v. Jersey City, 1 Dutch. (N. J.) 525, 530; Wetmore v. Brooklyn Gas Co., 42 N. Y. 384; Galveston v. Menard, 23 Tex. 349; Grant v. Davenport, 18 Iowa, 179, per Wright, J. But in California, see Dana v. Jackson, &c. Co., 31 Cal. 118. As to right to erect wharf by other than riparian owner on a tidal river, below high-water mark, quære; see Hagan v. Campbell, 8 Port. (Ala.) 9. In this case it is said: "It is clear that no part of such erections can be rested upon the lands of the riparian proprietor, nor can he be excluded from the use of the water, or denied other riparian rights." See People v. Davidson, 30 Cal. 379; Walker v. State Harbor Comm'rs, 17 Wall. 648 (1873); Packet Co. v. Atlee, 2 Dillon, 479 (1873); s. c. 21 Wall. 389. The plaintiff owned in fee, subject to the public easement of travel thereon, land to the centre of a street extending to the water line of the East River, on which he had constructed a bulkhead and wharf, and had the right to collect wharfage; the city of Brooklyn, without plaintiff's consent and wrongfully, built a pier at the end of the street, which pier was attached to the plaintiff's soil and between his land and the water line, and shut off the water from the plaintiff's wharf; and afterwards the city collected wharfage from all persons using the same. held that the pier in front of the plaintiff's half of the street became the property of the plaintiff by accretion, and that It was Riparian rights such as wharfage, do not necessarily attach to grants of land by the State under tide water below the shore line, or low-water mark. In such case the right to wharfage depends upon the terms of the grant, or its intent as shown by its declared purpose or by fair inference from its terms and the surrounding circumstances, such as long continued prior use, &c. Weber v. Harbor Comm'rs, 18 Wall. 57 (1873); Potomac Steamboat Co. v. Upper Potomac Co., 109 U. S. 672. The principles of these cases were applied in Turner v. People's Ferry Co. (U. S. Cir. Court, N. Y.), 21 Fed. Rep. 90 (1884), where, under the circumstances, it was held that the owner or lessee of premises along the bulkhead line at the head of a slip, between two wharves owned by the city of New York, was not entitled to an injunc tion to restrain the erection of a ferry rack and structures under authority of the State and the city in the slip in front of his premises, which structures when erected, although they would impair, would not cut the complainant off from free and open access to his premises. The legislation of New York applicable to the question and the cases bearing upon it are clearly presented in the opinion of Brown, J. great case of Langdon v. Mayor, &c. of New York, 93 N. Y. 129 (1883), and observations of Earl, J. pp. 144, 145, as to construction of water grants by the State and by the city. Hoboken v. Penn. R. R. Co., 124 U. S. 656, discusses the power of the legislature in respect of making grants of land under the naviga ble waters of the State. Gould v. Hudson River R. R. Co., 6 N. Y. 522; Langdon v. Mayor, &c. of New York, 93 N. Y. 130, 144; Mayor &c. v. Hart, 95 N. Y. 443 (1884); Lehigh Valley R. R. Co. v. Trone, 28 Pa. St. 206; Tomlin v. R. R. Co., See The rights of ripa § 107 (71). Limitations on Riparian Right. rian proprietors in respect to the erection of wharves, are subject to such reasonable limitations and restraints as the legislature may think it necessary and expedient to impose. Therefore it is competent for the legislature to pass acts establishing harbor and dock lines, and to take away the right of the proprietors to build wharves on their own land beyond the lines, even when such wharves would be no actual injury to navigation.1 But the right of wharfage held by 32 Iowa, 106; Ingraham v. R. R. Co., 34 Iowa, 249. 1 Commonwealth v. Alger, 7 Cush. 53 (1851). This subject is here very fully and learnedly discussed and examined. See also, Hart v. Mayor, 9 Wend. 571, valuable case, affirming 3 Paige, 213; Wetmore v. Brooklyn Gas Co., 42 N. Y. 384; People v. Vanderbilt, 26 N. Y. 287; Same v. Same, 28 N. Y. 396; Pollard's Lessee v. Hagan, 3 How. (U. S.) 212; Hagan v. Campbell, 8 Port. (Ala.) 9; Mobile v. Eslava, 9 Port. (Ala.) 577, (1839); Railroad Co. v. Winthrop, 5 La. An. 36. In Yates v. Milwaukee, 10 Wall. 497, Mr. Justice Miller, on behalf of the court, speaking of an existing wharf, denied that the city of Milwaukee, under the power to establish dock and wharf lines, could create an artificial and imaginary dock line, hundreds of feet away from the navigable part of the river, and, without making the river navigable up to that line, deprive the riparian owners of the right to avail themselves of the advantages of the navigable channel by building wharves and docks to it for that purpose; and said that if the city deemed the removal of the wharf in question necessary in the prosecution of any general scheme of widening the channel or improving the navigation of the river, it must first make the owner compensation for his property thus taken for the public use. As to this case, see infra, sec. 111. Nature and extent of riparian rights fully considered in Lyon v. Fishmongers' Co., L. R. 1 App. Cas. 662 (1876); Barney v. Keokuk, 94 U. S. 324 (1876). The riparian proprie tor upon a navigable lake, subject to the rights of the public, has the right to build piers and wharf in aid of navigation in front of his land, not interfering with the public easement; which rights appertain to his title, and are of such a nature that the legislature cannot authorize a railway company to build in front thereof so as to cut off access to the water, without such company being liable for damages to the riparian proprietor. Delaplaine v. C. & N. W. Ry. Co., 42 Wis. 214 (1887). The judgment is largely founded on and approves the opinions in Lyon v. Fishmongers' Co., L. R. 1 App. Cas. 662. As to power of the legislature in respect of making grants of lands under navigable waters, see Hoboken v. Penn. R. R. Co., 124 U. S. 656, distinguishing Hoboken Land and Improvement Co. v. Hoboken, 36 N. J. Law, 540, and other cases in New Jersey. See Yates v. Milwaukee, 10 Wall. 497; Weber v. Harbor Comm'rs, 18 Wall. 57; Railway Co. v. Renwick, 102 U. S. 180. The leading case in New York as to construction and effect of grants of land under water is Langdon v. Mayor, &c. of New York, 93 N. Y. 129. Referring to the conflicting cases as to the nature and extent of the rights of the riparian proprietor, Cooley, J., said: "In Railway Co. v. Renwick, 102 U. S. 180, the better and more substantial doctrine is laid down, that the land under the water in front of a riparian proprietor, though beyond the line of private ownership, cannot be taken and appropriated to a public use by a railway company under its right of eminent domain without making compensation to the riparian proprietor." Backus v. Detroit, 49 Mich. 110, 114 (1882). Contra, Langdon v. Mayor of New York, 93 N. Y. 129, and New York cases there cited. See interesting opinion of Finch, J., in Mayor v. Hart, 95 N. Y. 443, 457 (1884). In the Chicago Lake Front Case, 33 Fed. Rep. 730, U. S. Cir. Court, Harlan and Blodgett, JJ. (Illinois v. Illinois Cent. a grantee under a valid city grant, although it is an incorporeal right, is nevertheless property, or a property right. which can only be taken away by the legislature by the exercise of the right of eminent domain, on making compensation to the owner of the wharfage right.1 § 108 (72). Right to erect Public Wharves. While the riparian proprietor has the right to erect wharves which are private in their nature, but which may be used by the public with the consent of the owner, express or implied, the right to erect public wharves and to demand tolls or fixed rates of wharfage is, according to the better view, a franchise, which must have its origin in a legislative grant.2 - 1 Langdon v. Mayor, &c. 93 N. Y. 129; Williams v. Mayor, &c. 105 N. Y. 419. For measure of compensation to the wharf proprietor in such case, see Kingsland v. Mayor, &c. 110 N. Y. 569. § 109 (73). By Municipality. If a municipality is itself a riparian proprietor, this will probably give to it, in the absence of any R. R. Co.), it was held that the defendant a wharf upon the condition that its exrailroad company, as the riparian owner of terior margin should constitute a public certain water lots in Chicago, had the wharf. Baltimore v. White, supra. right, by virtue of such ownership, to connect the shore-line by artificial construction with outside waters that were navigable in fact, in the absence of legislative or governmental direction to the contrary; although the court added, that the exercise of that right is at all times subject to such regulations- at least, those not amounting to prohibition -as the State may establish; citing text, secs. 70-77; Yates v. Milwaukee, 10 Wall. 397, and other cases. It was also declared in the same case that the State of Illinois had the power, by legislation, to fix pier, dock, or wharf lines, other than those erected under authority of the United States, to which riparian owners in waters navigable in point of fact must conform. to Municipal control, under legislative grant, over right of riparian owner wharf out. Baltimore v. White, 2 Gill (Md.), 444 (1845); Wilson v. Inloes, 11 Gill & J. (Md.) 351; Barney v. Keokuk, 94 U. S. 324 (1876); s. c. 4 Dillon, 593; Weber v. Harbor Comm'rs, 18 Wall. 57 (1873). Where, under acts of the legisla ture, a city had the power to refuse assent to riparian owners to erect wharves, or to allow it upon such terms as they deemed beneficial to navigation and the use of the port of that city, it was held that the city might make the grant of the right to erect "People v. Wharf Co., 31 Cal. 34; The Wharf Case, 3 Bland Ch. (Md.) 383; Wiswall v. Hall, 3 Paige Ch. 313; Houck on Rivers, sec. 282; Thompson v. Mayor, 11 N. Y. 115. Text approved: Christie v. Malden, 23 W. Va. 667; The Geneva, 16 Fed. Rep. 874. See, as to navigator's right to moor and land, Bainbridge v. Sherlock, 29 Ind. 364; modified, Sherlock v. Bainbridge, 41 Ind. 35 (1872); Talbot v. Grace, 30 Ind. 389; Jeffersonville v. Ferry Co., 27 Ind. 100; s. c. 35 Ind. 19 (1870); Railroad Co. v. Ellerman, 105 U. S. 166; New Orleans v. Wilmot, 31 La. An. 65. Right of city as to grant to it of land under water, and the construction of such grant. Langdon v. Mayor, &c. of New York, 93 N. Y. 129; Weber v. Harbor Comm'rs, 18 Wall. 57; Hoboken v. Pa. R. R. Co., 124 U. S. 656, distinguishing Hoboken Land Imp. Co. v. Hoboken, 36 N. J. L. 540; supra, sec. 107, note. State courts have jurisdiction of suits for wharfage against domestic vessels. Jeffersonville v. Ferry Co., 35 Ind. 19, 23; The Phebe, 1 Ware Rep. 360; Russell v. The Swift, Newb. R. 553; Lewis, In re, 2 Gallis. 483. |