tion that such harbor or dock is adapted to receive and shelter vessels of such size as it is fitted for.1

§ 116. Same - Municipal corporations.- Quasi corporations, such as counties and municipal corporations, created by the legislature for public purposes, are subject to indictment at common law for neglect of a public duty imposed upon them, but are not liable to a private action for such neglect, unless such action is given by statute, or the liability arises by prescription, or unless they hold and deal with property for their own emolument, and receive rents or tolls therefrom like a private owner. Under the last exception, a city which has possession and exclusive control of a public wharf or dock, and receives toll for its use, is liable to an individual who is injured upon the wharf, or whose vessel is damaged, in consequence of non-repair. Upon the ground of prescription, a

1 Webb v. Port Bruce Harbor Co., 19 Q. B. (Can.) 615, 623; Berryman v. Port Burwell Harbor, 24 id. 34; post, § 144; Willey u Allegheny City, 118 Penn St. 490.

2 Russell v. Men of Devon, 2 T. R. 667; Hill v. Boston, 122 Mass. 344; Barnes v. District of Columbia, 91 U. S. 540, 551; DiHon, Mun. Corp. ch. 23; Gordon v. Taunton, 126 Mass. 349; Riddle v. Locks & Canals, 7 Mass. 169; Mower v. Leicester, 9 Mass. 247; Welsh v. Rutland, 56 Vt. 228, 234; Finch v. Board of Education, 30 Ohio St. 37; Pray v. Jersey City, 32 N. J. L. 394; Rowe v. Portsmouth, 56 N. H. 291; Eastman v. Meredith, 36 N. H. 284; Detroit v. Blackeby, 21 Mich. 84; Rapho v. Moore, 68 Penn. St. 404; Baltimore v. Marriott, 9 Md. 160, 173; Cooper v. Athens, 53 Ga. 638: Aldrich v. Tripp, 11 R. I. 145. See Waltham v. Kemper, 55 Ill. 346; Chicago v. Joney, 60 Ill. 383; Chicago v. Dermody, 61 Ill. 431; Richmond v. Long, 17 Gratt. 375; Transp. Co. v. Chicago, 99 U. S. 635; 7 Biss. 45; Nugent v. Levee Com'rs, 58 Miss. 197; Allen v. Smith (Tenn. Ch. App.), 47 S. W. Rep. 206.

3 Pittsburgh v. Grier, 22 Penn. St. 54; Pittsburg Ry. Co. v. Gilleland, 56 id. 445, 451; Winpenny v. Philadelphia, 65 id. 135, 140; Philadelphia v. Gilmartin, 71 id. 140, 159; Snyder v. Philadelphia, 78 id. 23; Hey v. Same, 81 id. 44, 51; Maxwell v. The City, 7 Phila. 137; Hill v. Boston, 122 Mass. 344, 376; Oliver v. Worcester, 102 Mass. 489; Aldrich v. Tripp, 11 R. L.. 141; Radway v. Briggs, 37 N. Y. 256; Kennedy v. New York, 73 N. Y. 365; Shinkle v. Covington, 1 Bush, 617; Memphis v. Kimbrough, 12 Heisk. 133; Petersburg v. Applegarth, 28 Gratt. 321; Jeffersonville v. Louisville Ferry Co., 27 Ind. 100; Jeffersonville v. The John Shallcross, 35 Ind. 19; Macauley v. New York, 67 N. Y. 602; Moody v. New York, 43 Barb. 282; Taylor v. New York, 4 E. D. Smith, 559; McGuiness v. New York, 52 How. Pr. 450; Seaman v. New York, 3 Daly, 147; De Boer v. Brooklyn Wharf Co., 64 N. Y. S. 925; Jackson v. Allegheny City, 41 Fed. Rep. 886. An agreement by a municipal corporation to let a repairing dock, which it owns, but of which it retains the control and possession, is not an

municipal corporation has been held liable to a person who lost his navigation because of its neglect to repair and cleanse a tide-water creek,' and for the same reason it may be liable to a private action for damages caused by its neglect to repair sea-walls. A city which, being under no legal obligation to remove obstructions in a navigable river, attempts so to do, but abandons the work without changing the position of an obstruction which afterwards causes injury to a vessel, is not liable therefor.3

§ 117. Same- Same.-Municipal corporations cannot engage in works of internal improvement, such as the construction of harbors, wharves, canals, etc., and loan their credit in aid thereof, without special authority from the legislature.* They have been thought not liable for the consequences of acts which are ultra vires, as by erecting an embankment in excess of their powers which turns a stream upon the plaintiff's lands.5 They may be empowered by the legislature to pass ordinances for the preservation of their harbors and water channels and the regulation of vessels, bridges and wharves; to deepen and

agreement as to an interest in land, and if the admission of ships into the dock is a matter of frequent ordinary occurrence, the agreement need not be under the corporate seal. Wells v. Kingston-upon-Hull, L. R. 10 C. P. 402.

1 Lynn v. Turner, Cowper, 86.

2 Henly v. Lyme, 5 Bing. 91; 3 Moo. & P. 278; 3 B. & Ad. 77; 2 Cl. & Fin. 331; 8 Bligh, N. R. 690; 1 Bing. N. C. 222; 1 Scott, 29; Hill v. Boston, 122 Mass. 344, 348, 360. But the mere grant by the sovereign of a charter to a municipal corporation situated upon navigable waters does not raise an implied duty, on the part of the grantee, to build or keep in repair wharves or sea-walls for the protection of the city lands from the sea. Coram v. St. John, 1 Hannay (N. B.), 441.

3 Goodrich v. Chicago, 4 Biss. 18.
4 Hasbrouck v. Milwaukee, 13 Wis.

37; Miller v. Milwaukee, 14 Wis. 642; Webb v. Demopolis, 95 Ala. 116; Chicago v. Law, 144 Ill. 569; McMillian v. Lauer, 24 N. Y. S. 951; Oebricke v. Pittsburg, 5 Penn. L. J. Rep. 485; Anthony v. Adams, 1 Met. 284.

5 Anthony v. Adams, 1 Met. 284; Wheeler v. Essex Public Road Board, 39 N. J. L. 291. But cf. post, § 260.

6 Ibid.; Escanaba Co. v. Chicago, 107 U. S. 678; Muscatine v. Keokuk Northern Line Packet Co., 45 Iowa, 185; Keokuk v. Keokuk Northern Line Packet Co., id. 196; Culbertson v. The Southern Belle, Newb. 461; Soens v. Racine, 10 Wis. 271; Hasbrouck v. Milwaukee, 13 Wis. 37; 17 Wis. 266; 21 Wis. 217; New York v. Ryan, 2 E. D. Smith, 368; People v. Bryan, 46 Barb. 355; Ogdensburg v. Lyon, 7 Lans. 215; Ogdensburg v. Lovejoy, 2 S. C. 83; 10 Alb. L. J. 207; Brown v. Catlettsburg, 11 Bush, 435; Grant v. Davenport, 18 Iowa,

improve rivers, or to remove or prevent obstructions therein, or to subscribe for stock in a company organized for the purpose of improving the navigation of a river contiguous to the city or town, even when the improvements extend through several towns or counties. Special laws granting such powers and the right to levy taxes therefor are sustained by the courts, it is said, only when it is apparent that the works will be generally beneficial to the members of the corporation." But the power must be conferred in express terms. A provision of a city charter giving power "to erect, repair, and regulate public wharves and docks, and fix the rates of wharfage thereat," does not enable the city to create a harbor or to improve one by obtaining an increased supply of water, or to condemn and take private wharves. With respect to counties, it has been held that the state legislature may require them, against their will, to levy and collect a tax for the improvement of rivers or harbors within their respective limits, in which the county is vitally interested, although the improvement may also be for the benefit of other counties and the State.R

179; Philadelphia v. Field, 58 Penn. St. 320; New Orleans v. New Orleans R. Co., 27 La. Ann. 414; Ellerman v. McMains, 30 id. 190; Municipality No. 1 v. Kirk, 5 La. Ann. 34; Shepherd v. Third Municipality, 6 Rob. (La.) 349; Tourne v. Lee, 20 Martin, 549; Gregory v. Bridgeport, 41 Conn. 76; Horn v. People, 26 Mich. 221; Marshall v. Vicksburg, 15 Wall. 146: Bacon v. Mulford, 41 N. J. L. 59; Geiger v. Filor, 8 Fla. 325; San Pedro v. S. Pac. R. Co., 101 Cal. 333; Evansville v. Martin, 41 Ind. 145; Jeffersonville v. Louisville Ferry Co., 27 Ind. 100; Stevens v. Walker, 15 La. Ann. 577; Waddingham v. St. Louis, 14 Mo. 190; Newport v. Batesville, etc. R. Co., 58 Ark. 270; Murphy v. Montgomery, 11 Ala. 586.

1 Rochester v. Osborn, 5 Lans. 37; Winpenny v. Philadelphia, 65 Penn. St. 135; Compton v. Waco Bridge Co., 62 Texas, 715 (access to ford).

2 Taylor v. Newbern, 2 Jones Eq. 141. As to the prohibiting the removal of sand by city ordinances, see Clason v. Milwaukee, 30 Wis. 316.

3 Alexander v. Milwaukee, 16 Wis.. 247; Miller v. Milwaukee, 14 Wis. 642; Hasbrouck v. Milwaukee, 13 Wis. 37; 17 Wis. 266; 24 Wis. 217; State v. Hasbrouck, 25 Wis. 122; Reed v. Erie, 79 Penn. St. 346. In the absence of statutory authority, a city cannot lease a public wharf to private persons. Bateman v. Covington, 90 Ky. 390; Belcher S. R. Co. v. St. Louis G. R. Co., 82 Mo. 121. As to ferries, see Macdonnell v. Int'l Ry. Co., 60 Texas, 590; Waterbury v. Laredo, id. 519.

46.

4 Spengler v. Trowbridge, 62 Miss.

5 Madison v. Daley, 58 Fed. Rep. 751. 6 Kimball v. Mobile, 3 Woods, 555. See State v. Keith County, 16 Neb. 508.

§ 118. Same-Same.-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. A wharf erected by a city is presumably open to

1 Johnson v. Milwaukee, 40 Wis. 315. See Sears v. Street Com'rs, 173 Mass. 350.

2 Hale v. Kenosha, 29 Wis. 599; Bond v. Kenosha, 17 Wis. 284; Buffalo Union Iron Works v. Buffalo, 13 Abb. Pr. N. s. 141; Delaware & H. Canal Co. v. Buffalo, 56 N. Y. S. 976; Wright v. Chicago, 20 Ill. 252; Elston v. Chicago, 40 Ill. 514; Goddin v. Crump, 8 Leigh, 120; Harrison Justices v. Holland, 3 Gratt. 236; Frederick v. Augusta, 5 Ga. 561. See Chicago v. Law, 144 Ill. 569.

v. St. Louis, 2 Dillon, 70; Morris Co. v. Central R. Co., 16 N. J. Eq. 419. But village boards may be authorized by the legislature to grant franchises for the collection of wharfage. Farnum v. Johnson, 62 Wis. 620. 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. "Dock" defined, in Snow v. Morton, 2 Nova Scotia, 237, 246. The term "wharfage " includes a charge for landing goods at a

3 Seaman v. New York, 80 N. Y. natural landing as well as at an arti239; ante, § 98, n.

4 Miller v. Milwaukee, 14 Wis. 642; Soens v. Racine, 10 Wis. 271; Roundtree v. Galveston, 42 Tex. 613. The legislature may authorize a city to acquire the fee of land necessary for the construction of a breakwater. Sweet v. Buffalo Ry. 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.

ficial wharf (Sacramento v. New World, 4 Cal. 41; Sacramento v. Confidence, id. 45; see People v. Roberts, 92 Cal. 659); but not the side of a street along a river (Shreveport v. Red River Line, 37 La. Ann. 562); or for landing goods beyond the city's wharf, on land which it does not own, in times of high water. St. Louis v. Schulenberg Lumber Co., 13 Mo. App. 56. The city's right is one of property, not sovereignty. Ibid. As to what constitutes a wharf, see Ibid.; Keokuk v. Keokuk North

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 without an express legislative grant of such franchise; 2 nor being authorized by law to maintain a toll ferry, can it order the ferry to run without toll. 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. Wharves - Public and private.- 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. If a vessel is wrongfully moored to a private wharf, and the wharf-owner, having occasion to use the wharf, sets it adrift, he incurs no liability if, in consequence of his

ern Line Packet Co., 45 Iowa, 196; Fitchburg R. Co. v. Boston R. 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.

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, id. 199; Dively v. Cedar Falls, 27 id. 227; Att. Gen. v. Boston, 123 Mass. 460; The Geneva, 16 Fed. Rep. 874. Without special authority a municipal corporation has no power to lease a ferry.

Millsaps v. Monroe, 37 La. Ann. 641. But if such a corporation has power to bridge a river it may empower a railroad corporation to do so. McCartney v. Chicago R. Co., 112 Ill. 611. 3 Att. Gen. v. Boston, 123 Mass. 460.

4 Bingham v. Doane, 9 Ohio, 165. So as to the erection of a toll-house within the limits of a turnpike company's land. Strattan v. Elliott, 83 Ind. 425; Danville Gravel Road Co. v. Campbell, 87 id. 57.

5 Illinois Canal Co. v. St. Louis, 2 Dillon, 70; Malloy v. Staten Island R. T. R. Co., 78 Hun, 166.

6 Hale, De Portibus Maris, ch. 6; Hargrave's Law Tracts, 77, 78; Munn v. Illinois, 94 U. S. 113, 150; Bolt v. Stennett, 8 T. R. 606; District of Columbia v. Johnson, 1 Mackey, 51; Buffalo v. Delaware, etc. R. Co., 39 N. Y. S. 4; Barrington Commercial Dock Co., 15 Wash. 170; Com. v. Louisville (Ky.), 47 S. W. Rep. 865; People v. Supervisors (Cal.), 55 Pac. Rep. 131; Degan v. Dunlap, 15 Phila. 69.