act, the vessel is stranded and lost. 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 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. 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,"

2 Hale, De Portibus Maris, ch. 6; Allnut v. Inglis, 12 East, 527; The Wharf Case, 3 Bland Ch. 361, 374; Munn v. Illinois, 94 U. S. 113, 151; Transp. Co. v. Parkersburg, 107 U. S. 691, 699; The Minnie L. Gerow, 5 Hughes, 169; The Whitburn, 14 Phila. 600; Aiken v. Eager, 35 La. Ann. 567; Robertson v. Wilder, 69 Ga. 340. The contract, express or implied, to pay wharfage is maritime, and a maritime lien may be founded thereon.

The Dora Mathews, 31 Fed. Rep. 619;
The Mary K. Campbell, id. 840;
Woodruff v. One Covered Scow, 30
id. 269.

3 Heaney v. Heeney, 2 Denio, 625;
Swords v. Edgar, 59 N. Y. 28; Lin-
coln v. Penn. W. Co., 8 Penn. Co. Ct.
195. See Exterkamp v. Covington
Harbor Co. (Ky.), 47 S. W. Rep. 1086.
4 Heaney v. Heeney, 2 Denio, 625.
5 Per Clifford, J., Dutton v. Strong,
1 Black, 23, 33; Railroad Co. v. Han-
ning, 15 Wall. 649; Backus v. De-
troit, 49 Mich. 110; 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.
6 Ibid.; Burrows v. Gallup, 32 Conn.
493.

7 Page v. Baltimore, 34 Md. 558;

or dedicate a public wharf to such exclusive uses as in its judg ment is proper.1 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 "for the value of the premises taken for public use, as well as for the 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.2

§ 120. Wharfage Who liable for. Those who avail themselves of the use of a wharf are liable for wharfage, though the wharf is out of repair, and even though the necessity of using it is compelled by stress of weather; and the right to collect these charges at public or private wharves carries with it the correlative duty to repair. The right of wharf-owners Hazlehurst v. Baltimore, 37 Md. 199. See Waddingham v. St. Louis, 14 Mo. 190; Murray v. Sharp, 1 Bosw. 539.

to exact compensation from ships and vessels' using a berth at their wharves, may be claimed upon an express or an implied contract. If upon an express contract, the agreed price is not affected by a statute which authorizes a certain per diem charge for goods remaining upon the wharf. 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; and if the time of occupancy is extended by such public authority as the quarantine officers, this is not an unexpected intervention of sovereignty which suspends the operation of the contract of wharfage. A vessel which is compelled by stress of weather to moor to a private wharf for safety, is not liable for wharfage if no fixed rates of wharfage are there in use. 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, and of which he gives notice. But no goods which

contract to pay wharfage. Camden R. Co. v. Finch, 5 Sand. 48. See Pelham v. Woolsey, 16 Fed. Rep. 418. 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 continuing trespass under the statute of limitations. Van Zandt v. New York, 8 Bosw. 375.

1 As to what is a “vessel,” see Ruddiman v. A Scow Platform, 38 Fed. Rep. 158; Cope v. Valette Dry-dock Co., 16 id. 924; The Pioneer, 30 id. 206; The International, 89 id. 484; Flandreau v. Elsworth, 151 N. Y. 473; 29 N. Y. S. 694; Hedges v. London Docks Co., 16 Q. B. D. 597; Wells v. Gas Float Whitton (No. 2), [1897] A. C. 337.

2 Woodruff v. Havemeyer, 106 N. Y. 129.

Garfield & P. C. Co. v. Fitchburg R. Co., 166 Mass. 119; The Antonio Zambrana, 88 Fed. Rep. 546; Scow No. 15, id. 305; 92 id. 1008; Clifford v. United States, 34 Ct. Cl. 223. The remedy is not by injunction, but by resisting excessive charges, if demanded. Silver v. Tobin, 28 Fed. Rep. 545.

4 Elwell v. Fabre, 52 Hun, 70. See A Cargo of Lumber, 23 Fed. Rep. 301.

5 Heron v. The Marchioness, 42 Fed. Rep. 173. So there is no wharfage when a steamer goes to the repairer's wharf for repairs. The Allianca, 56 Fed. Rep. 609.

6 Hale, De Portibus Maris, ch. 6; Hargrave's Law Tracts, 76; Brune v. Thompson, 4 Q. B. 543; 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,

3 Ex parte Easton, 95 U. S. 68, 73; 1 Cowper, 47; Wyatt v. Thompson, 2

7 Southern S. S. Co. v. Sparks, 22 Texas, 657; The Magnolia v. Marshall, 39 Miss. 109; The Buckeye State,

Newb. Adm. 69; Croucher v. Wilder, 98 Mass. 322.

are chargeable with a duty can be landed in any other place than a public port. Either the assent of the legislature or prescription is undoubtedly required to authorize the collection of fixed rates of wharfage; and, as Congress has abstained from action on the subject of wharfage, it is entirely within the operation of State laws, by which the reasonableness of the charge is to be determined. The State alone can prevent such wharfage charges as are exorbitant. If a wharf is unlawfully extended into navigable waters upon the soil of the State, the possessor's title cannot be disputed by those contracting for its use, and it seems that compensation can be required if the State does not object to the encroachment."

§ 121. Public nuisances Remedies. An unlawful obstruction to navigation, being a common nuisance, is remediable by indictment, or by abatement; 2 or a court of equity may take jurisdiction upon an information filed by the attorney general. Equity will not interfere, even upon an information in the name of the State, when the injury to the public is doubtful or prospective, but will leave the question of nuisance or no nuisance to be tried before a jury. When the