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. Either the assent of the legislature or pre

scription is undoubtedly required to authorize the collection.

v.

1 Radway v. Briggs, 35 N: Y. 256; 35 How. Pr. 422; ante, § 113; The Wharf Case, 3 Bland, 361; Yarmouth v. Eaton, 3 Burr. 1404; James 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. e. 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 continuing trespass under the statute of

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

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 v. Strong, 1 Black, 32; Ensminger v. People, 47 Ill. 384; Chicago v. Laflin, 49 Ill. 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 v. 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, or by abatement; or a court of equity may take jurisdiction upon an information filed by an attorney general. Equity will not

1 Wiswall v. Hall, 3 Paige, 313; People v. Broadway Wharf Co., 31 Cal. 34; People v. San Francisco Railroad Co., 35 Cal. 606; Taylor v. Beebe, 1 Rob. 268; O'Conley v. Natchez, 1 S. & M. 31.

2 Gunter v. Geary, 1 Cal. 462; Coburn v. Ames, 52 Cal. 385; Dana v. Jackson Street Wharf Co., 31 Cal. 118; Wetmore v. Brooklyn Gaslight Co., 42 N. Y. 384. Cases relating to wharf privileges and wharfage, upon special facts, are: McNairy v. Paine, 9 Humph. 533; Columbus v. Grey, 2 Bush, 477; Child v. Chappell, 9 N. Y. 246; Albany v. Trowbridge, 5 Hill, 71; 7 Hill, 429; Memphis Packet Co. v. Grey, 9 Bush, 148; Long Wharf v. Palmer, 37 Maine, 379; Stockwell v. Brewer, 59 Maine, 286; Union Wharf Co. v. Hemingway, 12 Conn. 293; Gregory v. Brooks, 35 Conn. 437; Union Wharf v. The J. H. Starin, 45 Conn. 585; 15 Blatch. 473; Dewees v. Adger, 2 McCord (S. C.) 105; Fitzsimons . Milor, 2 Rich. (S. C.) 371; People v. San Francisco Gaslight Co., 54 Cal. 248; Bersie v. The Shenandoah, 21 Mo. 18; Keokuk Co. v. Quincy, 81 Ill. 422; Whitney v. New York, 6 Abb. (N. C.) 330, n.; Langdon v. New York, Ibid. 314; Russell. The Empire State, Newb. Adm. 542; Thompson . New York, 11 N. Y. 115; 3 Sand. 487; Kelsey v. Murray, 28 How. Pr. 243; 18 Abb. Pr. 294; Linthicum v. Ray, 9 Wall. 241; Russell v. The Asa R. Swift, 1

Newb. Adm. 553. A mere right to collect wharfage for a term of years is neither real estate nor personal property, but a franchise or incorporeal hereditament. De Witt v. Hays, 2 Cal. 463; Commissioners v. Clark, 35 N. Y. 251; Langdon v. New York, 6 Abb. (N. C.) 314; Kelsey v. Murray, 18 Abb. Pr. 294; 28 How. Pr. 243.

3 Hale, De Jure Maris, c. 3, and De Portibus Maris, c. 7; Hargrave's Law Tracts, 9, 88; Rex v. Russell, 6 B. & C. 566; Rex v. Ward, 4 Ad. & El. 384; Rex v. Grosvenor, 2 Stark. 511; Rex v. Morris, 1 B. & Ad. 441; Rex v. Tindall, 6 Ad. & El. 143; Reg. v. Betts, 16 Q. B. 1022; Reg. v. Randall, 1 Car. & M. 496; Commonwealth 2. Wright, 3 Am. Jur. 185; Commonwealth v. Alger, 7 Cush. 53; People v. Vanderbilt, 26 N. Y. 287; People v. Horton, 64 N. Y. 610; Gates v. Blencoe, 2 Dana, 158; Walker v. Shepardson, 2 Wis. 384; Allegheny v. Zimmerman, 95 Penn. St. 287. + Post, § 128.

5

Attorney General v. Burridge, 10 Price, 350; Attorney General . Parmenter, Ibid. 378, 412; Attorney General v. Johnson, 2 Wils. Ch. 87; Attorney General . Richards, 1 Anst. 603; Attorney General ». Terry, L. R. 9 Ch. 423; Attorney General v. Lonsdale, L. R. 7 Eq. 377; Attorney General v. Tomline, 12 Ch. D. 214; Attorney General v. Cleaver, 18 Ves. 211; Georgetown . Alexandria Canal Co.,

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 not nuisance to be tried before a jury. When the nuisance causes both a public and a private injury, a suit in equity may be brought by information and bill.2 An individual may maintain a bill, without the attorney general, in respect to a public nuisance which causes him special damage. If a public nuisance, such as a bridge which obstructs the navigation, will also

affect the private rights of each of several private owners injuriously and in the same way, they may join as complainants in a bill to restrain the erection of the structure, or each may sue alone.1 Jurisdiction will not be taken upon a bill thus filed by an individual which discloses only detriment to the community at large, and does not set forth facts showing peculiar and irreparable injury to the plaintiff; 2 and a court

of equity will act with caution upon such a bill where an erection, such as a bridge or public mill, tends to promote the public convenience.1 The remedy by abatement is, according to numerous authorities, coextensive and concurrent with that by indictment.2 Upon an indictment against a person who has obstructed the navigation, and who relies upon a license from the government to justify the act, he is required to prove compliance with every requirement of the statute, as an exception.3 In such a case, the indictment must aver that the limits. of the statute are exceeded, and that the erection is not in pursuance of the authority given by the statute. An indictment against a bridge corporation for neglect of a provision of its charter that "said bridge shall be so constructed as not to prevent the navigation of said waters," must directly allege that the bridge prevents navigation. By an uninterrupted user for twenty years the public may acquire a prescriptive right of navigation in inland waters which are private property; but lapse of time will not legalize a public nuisance. The continuance of a

199.

'Barnes v. Calhoun, 2 Ired. Eq. Delaney v. Boston, 2 Harr. (Del.)

2 Post, § 128; Knox v. Chaloner, 42 Maine, 150; Arundell . McCulloch, 10 Mass. 70; Coates v. New York, 7 Cowen, 585; Miles . Hall, 9 Wend. 315; Hart . Albany, 9 Wend. 571; Renwick v. Morris, 3 Hill (N. Y.) 621; 7 Ibid. 575; Wetmore v. Tracy, 14 Wend. 250.

3 Commonwealth ?". Church, 1 Penn. St. 105; Renwick . Morris, 3 Hill (N. Y.) 621; 7 Ibid. 575; Knox v. Chaloner, 42 Maine, 150; State v. Freeport, 43 Maine, 198; State v. Dibble, 4 Jones (N. C.) 107, 115; State. Parrott, 71 N. C. 311; Healy v. Joliet Railroad Co., 2 Brad. (Ill.) 435; Hogg v. Zanesville Canal Co., 5 Ohio, 410.

State . Godfrey, 24 Maine, 232; Rex v. Liverpool, 3 East, 86.

State v. Penobscot Railroad Co.,

57 Maine, 402.

489; Burbaker v. Paul, 7 Dana, 429; Coolidge v. Learned, 8 Pick. 504; Shaw v. Crawford, 10 Johns. 236, 240; Ingram v. Police Jury, 20 La. Ann. 226. Individuals acquire by user no prescriptive right to navigate a public river, transversely or otherwise. Bird v. Smith, 8 Watts, 434. See Pearsall v. Post, 20 Wend. 111; 22 Wend. 425; Curtis v. Keesler, 14 Barb. 511.

7 Folkes . Chad, 3 Dougl. 340; King . Montague, 4 B. & C. 598; Weld . Hornby, 7 East, 195, 199; Rex v. Cross, 3 Camp. 224, 227; Carter v. Murcot, 4 Burr. 2162; Vooght v. Winch, 2 B. & Ald. 662; People v. Cunningham, 1 Denio, 524; Pierson v. Elgar, 4 Cranch, C. C. 454; Coates v. New York, 7 Cowen, 558; Crill v. Rome, 47 How. Pr. 398; Rochester v. Erickson, 46 Barb. 921; Ogdensburg v. Lovejoy, 58 N. Y. 662; 2 Sup.

6 Wheeler v. Spinola, 54 N. Y. 377; Ct. 83; Campbell . Seaman, 2 Sup.