§ 118. The principle under which special assessments are made by municipal corporations upon city lots, for improvements in adjoining streets or highways by land, applies also to improvements in highways by water;1 and such assessments may be authorized upon riparian proprietors whose estates are benefited thereby. A municipal corporation is under no obligation at common law to keep adjacent waters safe for navigation. A city which is invested by its charter with "the general powers possessed by municipal corporations at common law," may build a breakwater for the purpose of protecting its streets and the buildings thereon from inundation, and a contract entered into for that purpose is binding on the city at large. When such a corporation is authorized by statute to maintain, repair, and regulate docks and wharves for the free use of the public, or of those who pay toll, it is in general a power which cannot be delegated.5 A wharf erected

315.

Johnson v. Milwaukee, 40 Wis.

Hale v. Kenosha, 29 Wis. 599; Bond v. Kenosha, 17 Wis. 284; Buffalo Union Iron Works v. Buffalo, 13 Abb. Pr. (N. s.) 141; Wright v. Chicago, 20 Ill. 252; Elston v. Chicago, 40 II. 514; Goddin v. Crump, 8 Leigh, 120; Harrison Justices v. Holland, 3 Gratt. 236; Frederick v. Augusta, 5 Ga. 561.

v. Central Railroad Co., 16 N. J. Eq. 419. A city possessing the above authority may by ordinance prohibit the use of other wharves than those which it establishes. Dubuque v. Stout, 32 Iowa, 40, 47. The term "wharfage" includes a charge for landing goods at a natural landing as well as at an artificial wharf. Sacra mento v. New World, 4 Cal. 41; Sacramento v. Confidence, Id. 45. As to

3 Seaman v. New York, 80 N. Y. what constitutes a wharf, see Ibid.; 239; ante, § 98, N.

* Miller v. Milwaukee, 14 Wis. 642; Soens v. Racine, 10 Wis. 271; Roundtree v. Galveston, 42 Texas, 613. The legislature may authorize a city to acquire the fee of land necessary for the construction of a breakwater. Sweet v. Buffalo Railway Co., 79 N. Y. 203.

5 Oakland v. Carpentier, 13 Cal. 540; 21 Cal. 642; People v. Broadway Wharf Co., 31 Cal. 33; Lord v. Oconto, 47 Wis. 386; Matthews v. Alexandria, 68 Mo. 115; Mobile v. Moog, 53 Ala. 561; Illinois Canal Co. v. St. Louis, 2 Dillon, 70; Morris Co.

Keokuk v. Keokuk Northern Line Packet Co., 45 Iowa, 196; Fitchburg Railroad Co. v. Boston Railroad Co., 3 Cush. 58; Stevens v. Rhinelander, 5 Rob. (N. Y.) 285; Decker v. Jaques, 1 E. D. Smith, 80; People v. Kelsey, 38 Barb. 269; 14 Abb. Pr. 372. Authority conferred upon a city to build a free bridge, to be paid for by taxation, does not give it the right to establish a toll bridge. Williams v. Davidson, 43 Texas, 2. But if a city has authority under general laws to erect and maintain toll-bridges, it may change a toll-bridge into a free bridge, and vice versa. Scott v. Des Moines, 34 Iowa, 552.

by a city is presumably open to the public free of toll. If the corporation is expressly authorized by statute or by its charter to maintain a public wharf, or a free bridge or ferry, it cannot exact toll; 2 nor being authorized by law to maintain a toll ferry, can it order the ferry to run without toll.3 When the privilege is granted of erecting a wharf or dock in a highway, it does not include the right to erect a warehouse; but a city which is invested with power to regulate and control its public wharves may authorize the erection of elevators thereon to facilitate the transshipment of grain.5

§ 119. Piers, landing places, docks, and wharves may be private, or they may be in their nature public, although the property may be in an individual owner.6 If a vessel is wrongfully moored to a private wharf, and the wharfowner necessarily sets it adrift, he incurs no liability if, in consequence of his act, the vessel is stranded and lost.7 When wharves belonging to individuals are legally thrown open to the use of the public, they become affected with a public interest, and the wharfage must be reasonable. The keeping of such wharf is likened to the keeping of an inn, and all navigators have an implied license to moor their vessels to these wharves, an application to the owner for permission to do so not being necessary. If the owner of a

1 Muscatine v. Keokuk Northern Line Packet Co., 45 Iowa, 185; Russell v. The Empire State, Newb. 541; Taylor v. Atlantic Ins. Co., 37 N. Y. 275.

2 Mullarky v. Cedar Falls, 19 Iowa, 21; Clark v. Des Moines, 19 Iowa, 198; Dively v. Cedar Falls, 27 Iowa, 227; Attorney General v. Boston, 123 Mass. 460.

7 Dutton v. Strong, 1 Black, 23, 32; Harrington v. Edwards, 17 Wis. 586. The master of a vessel who wrongfully places the vessel behind a seawall, the exclusive right to use which, as a place of shelter, has been given to another, is liable for the loss of the latter vessel in a storm, if, upon request, he fails to remove his vessel.

3 Attorney General v. Boston, 123 Derry v. Flitner, 118 Mass. 131. Mass. 460.

Hale, De Portibus Maris, c. 6; Allnut v. Inglis, 12 East, 527; The Wharf Case, 3 Bland Ch. 361, 374; Munn v. Illinois, 94 U. S. 113, 151.

9 Heaney v. Heeney, 2 Denio, 625; Swords v. Edgar, 59 N. Y. 28.

public wharf sets adrift a vessel which is fastened thereto, and of which he has not requested the removal, he is liable for injury to the vessel occasioned thereby. The question whether a wharf is public or private depends upon the purpose for which it was built, the uses to which it has been applied, the place where located, and the nature and character of the structure.2 When a public highway is laid out to navigable waters, its termination is presumed to be a public landing as incident to the highway, but this presumption does not apply to any part of a highway which is laid out along the shore of such waters and follows the line of the shore, although it may come in contact with the water for a greater or less distance. The legislature, in the exercise of the power of eminent domain, may make a private wharf public in whole or in part, or dedicate a public wharf to such exclusive uses as in its judgment is proper.5 Where the legislature authorized a public wharf, landing, and road to be made on a plantation, the owner of which maintained a private wharf thereon, and directed payment to be made of the value of the premises taken for public use, as well as "damages generally to the same," it was held that the owner was not entitled to compensation for the loss of profits accruing from his private wharf.

§ 120. Those who avail themselves of the use of a wharf are liable for wharfage, though the wharf is out of repair;7

1

1 Heaney v. Heeney, 2 Denio, 625. 2 Per Clifford, J., Dutton v. Strong, 1 Black, 23, 33; Railroad Co. v. Hanning, 15 Wall. 649; The Wharf Case, 3 Bland, 361; Dugan v. Baltimore, 5 Gill & J. 357; Brown v. Ellicott, 2 Md. 75; Swords v. Edgar, 59 N. Y. 28; Degan v. Dunlap, 25 Alb. L. Jour. 103; Columbus v. Grey, 2 Bush, 476; Galveston v. Menard, 23 Texas, 349; O'Neill v. Annett, 25 N. J. L. 290. 3 Ibid.; Burrows v. Gallup, 32 Conn. 493.

Page . Baltimore, 34 Md. 558; Hazlehurst . Baltimore, 37 Md. 199.

See Waddingham v. St. Louis, 14 Mo.
190; Murray v. Sharp, 1 Bosw. 539.
5 Broadway Ferry Co. v. Hankey,
31 Md. 346.

6 Fuller v. Eddings, 11 Rich. (S. C.) 239; Eddings r. Seabrook, 12 Id. 504.

7 Jeffersonville v. Louisville Ferry Co., 27 Ind. 100; Prescott 2. Duquesne, 48 Penn. St. 118. The damages caused by a failure to repair the wharf may be recovered by the defendant when sued for wharfage. Buckbee v. Brown, 21 Wend. 110.

and the right to collect these charges at public or private wharves carries with it the correlative duty to repair.1 The right of wharf-owners to exact compensation from ships and vessels using a berth at their wharves, may be claimed upon an express or an implied contract. When the wharf is used without a definite agreement as to price, the proprietor is entitled to a just and reasonable remuneration for the use of his property and the benefit conferred.2 Any individual owner of a wharf may use it for the purpose of landing his own goods, which are not dutiable, or he may permit others to do so upon such terms as he thinks proper to impose,3 and of which he gives notice. But no goods which are chargeable with a duty can be landed in any other place than a public port.5 Either the assent of the legislature or prescription is undoubtedly required to authorize the collection

1 Radway . Briggs, 35 N. Y. 256; 35 How. Pr. 422; ante, § 113; The Wharf Case, 3 Bland, 361; Yarmouth v. Eaton, 3 Burr. 1404; James v. Johnson, 2 Mod. 143; Warrington v. Morley, 4 Mod. 320; Colton v. Smith, Cowper, 47; Freeman v. Walghan, 2 Wils. 296. The mooring of rafts to an unimproved bank of a river does not create the relation of landlord and tenant between the riparian owner and the owner of the rafts. Hall v. Jacobs, 7 Bush. 595. As to the action of use and occupation in relation to docks, see Hathaway v. Ryan, 35 Cal. 188; Camden R. R. v. Finch, 5 Sand. (N. Y.) 48; Mangum v. Farrington, 1 Daly (N. Y.) 236; Moore v. Jackson, 2 Abb. (N. C.) 211. The use of a pier projecting from a bulkhead in such manner as to prevent the owner from using his wharf, is a tort, and does not give rise to an implied contract to pay wharfage. Camden Railroad Co. v. Finch, 5 Sand. 48. And, if the grantor of a wharf, together with the right to collect wharfage thereat, builds another wharf so as to obstruct that which is granted, it is not a con

tinuing trespass under the statute of

limitations. Van Zandt v. New York, 8 Bosw. 375.

2 Ex parte Easton, 95 U. S. 68, 73.

3

Hale, De Portibus Maris, c. 6; Hargrave's Law Tracts, 76; Woolrych on Waters, 301; Gunning on Tolls, 123, 126; Sargent v. Reed, 2 Stra. 1228; 1 Wils. 91; Stephens v. Coster, 3 Burr. 1409; 1 W. Bl. 413; Colton v. Smith, 1 Cowper, 47; Wyatt v. Thompson, 2 Esp. 252; Dutton r. Strong, 1 Black, 32; Ensminger r. People, 47 Ill. 384; Chicago v. Laflin, 49 III. 172; The Wharf Case, 3 Bland, 383; Wetmore v. Brooklyn Gaslight Co., 42 N. Y. 384; Jeffersonville v. Louisville Ferry Co., 27 Ind. 100; O'Neill v. Annett, 27 N. J. L. 290 ; The Volusia, 3 Wall. Jr. 375. See Allnut v. Inglis, 12 East, 527; Hargrave's Law Tracts, 77, 78.

4 Southern Steamship Co. v. Sparks, 22 Texas, 657; The Magnolia r. Marshall, 39 Miss. 109; The Buckeye State, Newb. Adm. 69; Croucher v. Wilder, 98 Mass. 322.

5 The Wharf Case, 3 Bland, 361; Hale, De Portibus Maris, c. 6; Hargrave, 78.

of fixed rates of wharfage;1 and if a wharf is unlawfully extended into navigable waters upon the soil of the State, no compensation can be demanded by an individual for use of that part of the wharf which is beyond the line of his rightful ownership.2

§ 121. An unlawful obstruction to navigation, being a common nuisance, is remediable by indictment,3 or by abatement; or a court of equity may take jurisdiction upon an information filed by an attorney general. Equity will not