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 nonrepair. Upon the ground of prescription, a 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,2 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.4 667; Hill v. Boston, 122 Mass. 344; Barnes v. District of Columbia, 91 U. S. 540, 551; Dillon, Mun. Corp. c. 23; Gordon v. Taunton, 126 Mass. 349; Riddle v. Locks & Canals, 7 Mass. 169; Mower v. Leicester, 9 Mass. 247; Finch v. Board of Education, 30 Ohio St. 37; Pray v. Jersey City, 32 N. J. L. 394; Rowe . 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, 175; 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; Transportation Co. v. Chicago, 99 U. S. 635; 7 Biss. 45; Nugent v. Levee Commissioners, 58 Miss. 197. 'Pittsburgh . Grier, 22 Penn. St. 54; Pittsburg Railway v. Gilleland, 56 Penn. St. 445, 451; Winpenny v. Philadelphia, 65 Penn. St. 135, 140; Philadelphia v. Gilmartin, 71 Penn. St. 140, 159; Snyder v. Philadelphia, 78 Penn. St. 23; Hey v. Philadelphia, 81 Penn. St. 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. I. 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. 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 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-uponHull, L. R. 10 C. P. 402. 2 Lynn v. Turner, Cowper, 86. 3 Henly . Lyme, 5 Bing. 91; 3 Mo. & 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. Goodrich v. Chicago, 4 Biss. 18. § 117. Municipal corporations cannot engage in works of internal improvement, such as the construction of harbors, canals, etc., and loan their credit in aid thereof without special authority from the legislature. They have been thought not liable for acts which are ultra vires, as by erecting an embankment in excess of their powers which turns a stream upon the plaintiff's lands.2 They may be empowered by the legislature to pass ordinances for the preservation of their harbors and water channels and the regulation of vessels and wharves ;3 to deepen and improve rivers, or to remove and 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." 1 Hasbrouck v. Milwaukee, 13 Wis. 37; Miller v. Milwaukee, 14 Wis. 642; Oebricke v. Pittsburg, 5 Penn. L. J. Rep. 485; Anthony v. Adams, 1 Met. 284. Anthony v. Adams, 1 Met. 284; Wheeler v. Essex Public Road Board, 39 N. J. L. 291. But cf. post, § 260. 3 Ibid.; 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, 179; Philadelphia v. Field, 58 Penn. St. 320; New Orleans v. New Orleans Railroad Co., 27 La. Ann. 414; Ellerman v. McMains, 30 La. Ann. 190; Municipality No. 1 v. Kirk, 5 La. Ann. 34; Shepherd v. Third 5 v. 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. 6 Alexander v. Milwaukee, 16 Wis. 247; Miller v. Milwaukee, 14 Wis. 642; Hasbrouck v. Milwaukee, 13 Wis. 37; 17 Wis. 266; 21 Wis. 217; State v. Hasbrouck, 25 Wis. 122; Reed v. Erie, 79 Penn. St. 346. § 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; and such assessments may be authorized upon riparian proprietors whose estates are benefited thereby.2 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 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.8 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. 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. 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. If the owner of a 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. Bingham v. Doane, 9 Ohio, 165. 5 Illinois Canal Co. v. St. Louis, 2 Dillon, 70. 6 Hale, De Portibus Maris, c. 6; Hargrave's Law Tracts, 77, 78; Munn v. Illinois, 94 U. S. 113, 150; Bolt v. Stennett, 8 T. R. 606. 8 Hale, De Portibus Maris, c. 6; Allnut v. Inglis, 12 East, 527; The Wharf Case, 3 Bland Ch. 361, 374; Munn . 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.6 § 120. Those who avail themselves of the use of a wharf are liable for wharfage, though the wharf is out of repair;7 1 Heaney v. Heeney, 2 Denio, 625. Per Clifford, J., Dutton r. 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 r. 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. 4 Page v. Baltimore, 34 Md. 558; Hazlehurst c. Baltimore, 37 Md. 199. See Waddingham v. St. Louis, 14 Mo. 6 Fuller v. Eddings, 11 Rich. (S. C.) 239; Eddings . Seabrook, 12 Id. 504. 7 Jeffersonville v. Louisville Ferry Co., 27 Ind. 100; Prescott ľ. 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. Buckbeer. Brown, 21 Wend. 110. |