1 Murphy v. City Council, 11 Ala. 586 (1847). The court say: "The title to the wharf is in the city, and, such being the fact, it had the same right as any other proprietor to collect wharfage from those landing goods there. This right, resulting from its proprietary interest, is not a franchise, but a right of property." Ib., per Ormond, J., p. 558. The city of Boston has, under the laws of Massachusetts, the same rights as other littoral proprietors, and was held not to dedicate a dock, which it owned, to the public, by merely abstaining from any control over it. The court observe: "The people of Boston, who owned the land as their common and private property, acted through a corporation (the city), whose corporate grants and licenses are matters of record. Their own use of their own property for their own benefit cannot be called a dedication of it to any other public of wider extent. Whether it was called 'town dock' or 'public dock' which were used as synonymous terms), it would furnish no ground to presume that they had parted with their right to govern and use it in the manner most beneficial to the people or public of the town or city." Boston v. Lecraw, 17 How. (U. S.) 426 (1854). The title and right involved in the Lecraw case, just cited, were before the Supreme Court of the United States three times (17 How. 426; 19 How. 263; 24 How. 188). The plaintiff was the owner of two wharves, called the Price Wharf and the Bull Wharf, which extended from high to low water mark. The City of Boston (the defendant) laid out Summer Street thirty feet in width to the water, and the lines of the street if extended into the water would separate the plaintiff's two wharves. The land under the waters within such extended space between high and low water mark belonged to the city. The action was brought by the wharf owner or his tenant against the city for nuisance, charging that the city had erected piles in the said water space, or dock, between the plaintiff's two wharves; also a drain in the dock for carrying off sewage. In the case in 17 How.

426, the Supreme Court decided that the City of Boston, as the proprietor of the land under water at the foot of Summer Street, might reclaim the land under water by filling up the space and building thereon, and thus exclude the public, including the plaintiff, from its use for navigation when covered by the tide ; but that until the owner (the city) did so the public might lawfully use the same; and that such use is not adverse to the city or the owner of the land, and lays no foundation for a claim of dedication of the land to that use, since the right of navigation is the paramount right, but was a right defeasible by the exercise of the city's right to reclaim its land under water by wharfing out or making erections thereon beneficial to itself; and the court held that there was no evidence whatever that the city or the people of Boston had dedicated the slip or dock between the plaintiff's wharves to any public use, and that the city had the right to drive piles or extend its sewers in the locus in quo to low-water mark. In the case in 19 How. 263, the court decided that if the city had determined to reclaim this dock or land under water between the plaintiff's wharves, and had laid out and constructed a street thereon or continued the street to lowwater mark, then the right to use it as a street or highway on land became appurtenant to the wharf property of the adjoining owners; and also that if the city in the exercise of its power to make drains under the streets should so construct them as to hinder the public in their use of the streets as streets, or to create a nuisance to the adjoining properties, it would be liable therefor, since if such a street be made the plaintiff would have a right to pass along the same as well as the public. In the case in 24 How. 188, it appeared that the space had not been reclaimed from the water, and that no street on land had been made; and the court decided that though the city was the owner of the land at the foot of the street between high and low water mark, it could not lay out a street or highway in the water of the ocean for

boats and vessels; and that on the facts of the case the city was not liable to the plaintiff, the owner of the wharves, for erecting drains and sewers on the city's own land at the foot of the street, for the preservation of the health of the city. Commonwealth v. Roxbury, 9 Gray, 514, 519, and note; Railroad Co. v. Ellerman, 105 U. S. 166. Bona fide purchaser of a wharf in the city of Baltimore, erected under contract with the city, and in which the city had certain rights, held affected with notice of those rights. Baltimore v. White, 2 Gill (Md.), 444. A city, authorized by its charter to build wharves on its own property, and to obtain by contract or purchase the title or the control of other wharves in the city, and to raise a revenue therefrom by establishing and collecting a rate of dockage and wharfage, had no power to take a lease of a wharf containing a provision that it should be kept as a free wharf. Mobile v. Mood, 53 Ala. 561. Wharves, whether terminating streets or not, are not streets; if owned by the city they may be leased to private persons. In such case the title is not a public easement, but proprietary. Horn v. People, 26 Mich. 221; and see Scott v. Layng, 59 Mich. 43; supra, sec. 103, note; infra, sec. 110, note; sec. 114, note, as to ferry landing at foot of street. "Within the corporate limits, the city of New Orleans, under her charter and under the general law, has the right to control, manage, and administer the use of the river banks for the public convenience and utility; to establish wharves and landings; to erect works and provide facilities for the use of vessels and water craft; and to charge just compensation for the use thereof. Riparian proprietors have no right to appropriate to their exclusive use these banks, and they have no private property in the use thereof, which is public.

The discretion of the city authorities in determining what are proper and needed facilities for commerce, and on what part of the river bank, within her limits, they should be established, is manifestly not a proper subject for judicial control or interference. Whatever incidental damage may result to proprietors from the exercise of these unquestionable corporate rights, it is damnum absque injuria." Per Fenner, J., in Watson v. Turnbull, 34 La. An. 856.

1 Snyder v. Rockport, 6 Ind. (Porter) 237 (1855); Railroad Co. v. Winthrop, 5 La. An. 36; State v. Jersey City, 34 N. J. L. 31; Mayor of St. Martinsville v. Steamer Mary Lewis, 32 La. An. 1293. As the municipality derives such powers from the legislature, the legislature may repeal or revoke them at pleasure, if it does not deprive the municipality of property acquired by it under the legislative grant. Railroad Co. v. Ellerman, 105 U. S. 166 (1881). Under the charter of a city providing that the city "shall have control of the landings of the Mississippi River, and the right to build wharves and regulate the landing, wharfage, and docking of boats," it may establish and construct wharves, and collect a reasonable compensation for their use. Muscatine v. Keokuk, &c. Packet Co., 45 Iowa, 185 (1876); post, sec. 112. While a city may be enjoined, at the instance of a taxpayer, from raising taxes or appropriating money for the unauthorized construction of a wharf, it will not be restrained from exercising a clear power to grade streets, merely because, by such grading, a wharf at the river end of the street will incidentally result. Snyder v. Rockport, above cited. The city of Dubuque, under its charter, was held to have power to prohibit all persons, including riparian owners, from using any place but the public wharf

without paying wharfage. Dubuque v. Stout, 32 Iowa, 80; s. c. 7 Am. Rep. 171; post, sec. 112, note. As to the use, under municipal authority, of streets bordering on a navigable river for structures for the accommodation of passengers and the storage of freights, &c., see Barney v. Keokuk, 94 U. S. 324 (1876); s. c. below, 4 Dillon, 593; Ill. &c. Co. v. St. Louis, 2 Dillon, 70.

1 McMurray . Mayor, &c. of Baltimore, 54 Md. 104 (1880); Dugan v. Mayor, 5 Gill & Johns. 375; Haight v. Keokuk, 4 Iowa, 199; Barney v. Keokuk, 94 U. S. 324; Rowans' Ex'rs v. Portland, 8 B. Monroe, 253; Newport v. Taylor's Ex'rs, 16 B. Monroe, 700; Barney v. Mayor, 1 Hughes (C. C.) 118; Potomac Steamboat Co. v. Upper Potomac, &c. Co., 109 U. S. 672 (1883), and cases cited by Matthews, J., on pp. 682, 683. The general ground of the doctrine is that streets terminating or fronting on the water may be legitimately used for wharf purposes; and the cases show that there is a very general legislative recognition of this right and usage. In accordance therewith, it was held in the Chicago Lake Front case by the United States Circuit Court (Harlan and Blodgett, JJ.), 33 Fed. Rep. 730 (1888), that the city of Chicago, as the riparian owner of ground on the shore of the lake, having, also, under its charter, power to maintain wharves and slips at the ends of streets, and to maintain a breakwater to protect the shore, could delegate the power to construct such breakwater to a railroad company as consideration for allowing the road to enter the city; and that upon the erection of the breakwater and the filling in of the space between the breakwater and the shore line, the land thus reclaimed belonged to the city, Blodgett, J., dissent

In

ing on this point. It was decided in City of Baltimore v. White, 2 Gill (Md.), 444 (1845), that under an act of the legisla ture prohibiting any person from making or extending any wharf in Baltimore, without the city's consent to the plan thereof first obtained, the city may refuse its assent to the erection of a wharf except upon the condition that its exterior margin shall constitute a public wharf. If private persons accept or act upon the city's assent thus conditioned, and thereupon build the wharves, they consent to the dedication of its exterior margin for that purpose; and in the absence of a contract or legislative provision as to who is entitled to the wharfage at such a wharf, it was held under the circumstances to belong to the city, and not to the riparian proprietor who constructed the same. Newport, &c. v. Taylor's Ex'rs, 16 B. Monroe, 699, 804 (1855), it was decided that where a proprietor of lands laid out a town on a navigable river and dedicated the land along it to be a common, that such dedication conferred upon the public authorities of the town the right to build wharves. S. P. as to lands dedicated as a street on the river bank of a town. Rowan's Executors v. Portland, 8 B. Mon. 232, cited with approval by Matthews, J., in Potomac Steamboat Co. v. Upper Potomac &c. Co., 109 U. S. 686, 687; Louisville v. Bank, 3 B. Mon. 144; Kennedy v. Covington, 8 Dana, 61. A city in Alabama constructed a wharf at the end of a dedicated street leading to the water; held that the adjoining proprietor was not the owner of the wharf, and could not eject the city therefrom. Doe v. Jones, 11 Ala. 63 (1847). In Michigan, a dedicated street terminating upon a navigable water gives to the city, having power to erect and regulate public wharves and docks at the

ends of streets, the right, as against a proprietor whose property fronts on the street and the navigable water, to erect a wharf for public purposes, and this irrespective of whether the city holds the fee of the street or not. Backus v. City of Detroit, 49 Mich. 110 (1882). In this case Cooley, J., said: "The dedication passed [by the statute] the fee in all streets marked upon it to the county in which the city was situated. But this was only in trust for street purposes. We attach no special importance to the fact that the title passed instead of a mere easement. The purpose of the statute is not to give the county the usual rights of a proprietor, but to preclude questions which might arise respecting the public uses, other than those of mere passage, to which the land might be devoted." The city of Detroit is, by its charter, authorized "to erect, repair, and regulate 'public wharves' and docks at the ends of streets, and on the property of the corporation, and to fix lines beyond which private docks shall not extend, and to lease wharf and wharfage privileges at the ends of streets," &c. This gives the power to the city to authorize a wharf to be built at the end of a street terminating on the navigable water. It was held in Horn v. People, 26 Mich. 222, that wharves constructed by the city under this power, whether at the end of highways or on its property, are the property of the city, and may be leased as such. Campbell, J., thus defines the words "public wharf," as used in the charter (Ib. p. 224): "There is no instance in which the term 'public wharf' has been used in our legislation to indicate any thing analogous to a dedication to any public use, like that of highways. Such a public right is unknown to the common law. Wharfage involves exclusive use, for longer or shorter periods, by each vessel, depending on the nature of its busi

ness, and the extent of its cargo. All that is meant in the charter by a 'public wharf' is a wharf belonging to the city, and to be used like any other wharf property. The term is applied as well to wharves on city property away from streets, as to wharves at the end of streets." See also, Scott v. Layng, 59 Mich. 43, 49 (1886). See post, chap. on Dedication.

1 Grant v. Davenport, 18 Iowa, 179 (1865). Where the charter of a city authorizes it" to regulate the erection and repair of private wharves and the rates of wharfage thereat, the city," says Wright, C. J., "may regulate, but not destroy; may exercise control, as over other private property within its limits, but not to the extent of appropriating the use and enjoyment thereof to the public without compensation." Ib. Liability of city corporation for an injury to a private wharf, caused by diverting streams of water to a point near the wharf, thereby causing a great deposit of sand and earth, which lessened the depth of water at the wharf and impaired its value. Barron v. Baltimore, 2 Am. Jurist, 203, cited and approved in Stetson v. Faxon, 19 Pick. 147 (1858); and see, also, Thayer v. Boston, 19 Pick. 510. If the deposits from sewers constructed by the city cause a peculiar injury to the wharf owner, the city is liable to the latter in damages. Franklin Wharf Co. v. Portland, 67 Me. 46 (1877); s. c. 24 Am. Rep. 1, and Mr. Thompson's note; Haskell v. New Bedford, 108 Mass. 208; Brayton v. Fall River, 113 Mass. 218; s. c. 18 Am. Rep. 470; post, chap. xxiii. Power to erect public wharves and to condemn private property therefor includes the power to extend a wharf already established, and compulsorily to appropriate the necessary land for that purpose, on making compensation to the owner. Hannibal v. Winchell, 54 Mo. 172 (1873).