ever be the consequences. Graves, 19 Md. 373.

State v.

A city cannot, by contract, deprive itself of the power to regulate the reconstruction of railways, made necessary by the changes in the character of pavements used upon the streets of the city; neither can it embarrass or clog its right to exercise such power by undertaking, either expressly or by implication, to pay the expenses necessarily incurred by the company in complying with the reasonable and proper regulations made by the city on this subject. Louisville City R. Co. v. Louisville, 8 Bush (Ky.) 415.

A license granted by a city to an individual, to connect his property with the city railroad by a turn-out track, is not such a contract as will prevent the city from abandoning said railroad whenever it deems expedient for the public good. Branson v. Philadelphia, 47 Pa. St. 329. In this case the court said: "Perhaps it might be sufficient to say that he took the license subject to 'all other ordinances relating to the railroad in the city of Philadelphia.'"

The city council of Cincinnati undertook to grant away an exclusive right to use the streets of the city for the purpose of laying gas pipes for conveying gas to be used for lighting the city, for a term of twenty-five years, and thereafter, until the gas works' pipes, etc., were purchased by the city. To enable the city council to grant such an exclusive right by ordinance in the nature of a contract, the power must be shown to have been expressly granted or to be so far necessary to the proper execution of the powers which are expressly granted, as to make its existence free from doubt. State v. Cincinnati Gas Light, etc., Co., 18 Ohio St. 262.

People v. Baltimore, etc., R. Co. (Supreme Ct.), 3 N. Y. Supp. 29.

1. In Illinois R., etc., Co. v. St. Louis, 2 Dill. (U. S.) 70, the court, by Dillon,

J., said: "A wharf differs in many material respects from a street. The latter is primarily intended for the purposes of passage or travel, and any erection in it, without legislative authority, is a nuisance; but a wharf is intended to afford conveniences for the landing of vessels, the loading or unloading of their cargoes, and to supply a place on which the wares discharged from vessels or awaiting shipment may be laid or deposited; and it would seem that structures or appliances of any kind intended, and which have the effect to facilitate the handling and preservation of merchandise arriving at the wharf, erected upon it under municipal authority, and remaining at all times subject to municipal control, would be lawful and within the purposes for which the wharf property was acquired or dedicated. We do not say that the municipal authorities could use the wharf property for mere warehouse purposes, though we have no doubt that it would be competent for them to erect, or authorize the erection thereon, of such structures, for the receipt and shipment of goods by water, as they might deem expedient in order to promote the trade and commerce of the city. And we are clearly of opinion that the erection, under the sanction of the city, of an elevator to be used in handling grain at the wharf, and at all times under the direction and control of the municipal authorities, is such a use of wharf property as does not fall without the scope of dedication, and such a structure would not, therefore, be a public nuisance. We have not met with, nor have counsel cited, any adjudication upon the precise point; and we have therefore been compelled to decide it upon principle, and have felt that it was due to the importance of the question to set forth our views, as we have done, with considerable fullness."

In Belcher Sugar Refining Co. v.

St. Louis Grain Elevator Co., 10 Mo. App. 401, the court held that a city which had condemned property for use as a wharf, under legislative authority, might have, for a limited time, a portion thereof for the erection of an elevator warehouse; but on appeal to the supreme court in 82 Mo. 121, the court held that while the city, in order to meet the demands of commerce and the changed methods of handling grain, might license the erection of elevators and warehouses to be used in connection with the wharves without violating the rights of the owners of the land, it had no right to lease any portion of it for a term of years without a reservation of the right to cancel the lease-that without such a reservation it was but a lease of a portion of land condemned solely for public use for wharf purposes, for the private use and private gain of the lessee.

In Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 10 Mo. App. 401; 82 Mo. 121, it was held that the legislature had the power to give to municipal authorities portions of a public wharf for wharf purposes, and that where property was condemned as "a public highway for wharf purposes," its use for grain elevators was not inconsistent with such a purpose.

A lease of a wharf and landing from the city of Philadelphia, does not give the tenant a right to store street dirt on its whole length, the wharf being part of the street. Struthers v. Bickley, 9 Phila. (Pa.) 539.

It would not do to permit property condemned for one purpose to be used for another and different purpose, or property condemned for public use to be used for a private use. Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 82 Mo. 121.

1. Milhau v. Sharp, 27 N. Y. 611; 84 Am. Dec. 314; New York v. Cunard Steamship Co. (Supreme Ct.), 15 N. Y. Supp. 904; Brooklyn v. Brooklyn City R. Co., 47 N. Y. 475; 7 Am. Rep. 469;

Gale v. Kalamazoo, 23 Mich. 344; 9 Am. Rep. 80; Dingman v. People, 51 Ill. 277; Brimmer v. Boston, 102 Mass. 19; Johnson v. Philadelphia, 60 Pa. St. 445; Jackson v. Bowman, 39 Miss. 671.

A board of trustees of a city gave the defendants the exclusive privilege of laying out, establishing, and constructing wharves, etc., in the city for a term of thirty-seven years. It was held that the ordinance under which the grant was made was void as being a transfer of the corporate powers of the board, and that the powers delegated by the government to municipal corporations were trusts not subject to be delegated by the corporations. Oakland v. Carpentier, 13 Cal. 540.

A grant of the right to use a portion of a pier for ferry purposes, does not include the right to erect and maintain sheds suitable for running the ferry. Cunard Steamship Co. v. Voorhies, 50 N. Y. Super. Ct. 253.

2. McGuiness v. New York, 52 How. Pr. (N. Y. Supreme Ct.) 450; Jeffersonville v. Louisville, etc., Steam Ferry Co., 27 Ind. 100; 89 Am. Dec. 495.

A city, keeping a wharf and charging for the anchoring of boats, is bound to protect the boats against the dangers of ordinary floods. Shinkle v. Covington, 1 Bush (Ky.) 617.

If a city owns a river wharf and charges toll to those using the wharf as a landing, it is bound to use the precautions and appliances for securing and holding boats and rafts that a diligent man ordinarily would employ for the protection of his own boat at his own wharf. Willey v. Allegheny, 118 Pa. St. 490; 4 Am. St. Rep. 608.

The obligations assumed by a city, upon taking charge of its wharves and landings, and by charging and receiv ing wharfage dues, are to provide a good and safe wharf for the landing of goods, and to keep it in repair. Fennimore v. New Orleans, 20 La. Ann. 124.

The libelant occupied a portion of a public wharf, under a lease from the city, with floats used by him as a coal

yard. In a sudden flood, the chains by which his floats were held to a mooring post on the wharf broke, and his floats were swept away, the mooring post remaining firm. He sought to recover of the city on the ground of its negligence in not replacing posts which were cut down by a railroad company, to which it had granted a right of way along the wharf, and which he might have used in time of flood for additional moorings. It was held that the city was not liable, in the absence of any evidence that the libelant complained of the cutting of the posts, or notified the city to replace them; he not being entitled to the same degree of care due from a wharfinger to navigators using its wharf. Jackson v. Allegheny, 41 Fed. Rep. 886.

But a city is not liable to an individual because its common council refuses to repair certain docks which it is directed to repair. For this purpose the common council is an agent of the state and not of the city. New York, etc., Saw Mill, etc., Co. v. Brooklyn, 8 Hun (N. Y.) 37.

When, however, it is made by statute the duty of the department of docks of a city to keep a wharf belonging to the city in repair, although the use of the dock is solely for the benefit of the department of charities, but in its custody, the city is liable for damages caused to a vessel rightfully using the dock, by the failure of the department of docks, as its agent, to keep the dock in repair. Philadelphia, etc., R. Co. v. New York, 38 Fed. Rep. 159.

The liability of public trustees who have been vested by statute with the control of wharves and docks, differs in no way from that of absolute owners levying tolls for their own benefit. Mersey Docks v. Gibbs, 11 H. L. Cas. 686.

But when trustees are not vested with any such control, and the duty of removing obstructions imposed by statute is discretionary and not compulsory, no liability attaches. Forbes v. Lee Conservancy Board, 4 Exch. Div. 116. And harbor trustees cannot be held liable for failing to cleanse, deepen, or remove obstructions from harbors, when they have no funds to enable

them to do so. Grant v. Sligo Harbor Com'rs, 11 Ir. R. C. L. 190.

A city is liable for injury to boats occasioned by its failure to remove at reasonable intervals the accumulations from drains at public wharves to which boats are invited, and at which the city collects wharfage. The Dave & Mose, 49 Fed. Rep. 389.

A city maintaining a wharf, is liable to the owner of a boat, who has paid the wharfage, for the loss of the boat while fastened to the wharf, if such loss was occasioned by its negligence in not furnishing proper fastenings. Shinkle v. Covington, 1 Bush (Ky.) 617. See also People v. Albany, 11 Wend. (N. Y.) 539; 27 Am. Rep. 95; Buckbee v. Brown, 21 Wend. (N. Y.) 110.

In order to establish the liability of a city for negligence in maintaining a wharf, it is not necessary to show title in the city, and that it is impowered to exercise control over the wharf. It is enough if it can be shown that it is in possession of the wharf, controlling and charging toll for its use, and it is not material whether the city has adopted ordinances for the regulation of the wharf or having such, neglected to enforce them. Pittsburg v. Grier, 22 Pa. St. 54.

1. When a charter of a city imposes upon it the duty of repairing its wharves, an indictment will lie for a failure to do so. Lyme Regis v. Henley, 3 B. & Ad. 77; 23 E. C. L. 32. See also People v. Albany, 11 Wend. (N. Y.) 539.

A wharf built by individuals is private property. One built by a city, under the general law, is under the jurisdiction and control of the city authorities. In the latter case the city can be compelled to repair it, and is liable for damages occasioned by the neglect to repair. Jeffersonville v. Louisville, etc., Steam Ferry Co., 27 Ind. 100; 88 Am. Dec. 495.

For effect of a grant of the wharfage to be collected at a public pier upon the obligation of the corporation to repair, see Taylor v. New York, 4 E. D. Smith (N. Y.) 559.

2. Delaware River Steamboat Co. v. Burlington Steam Ferry Co., 81 Pa.

St. 103; Stetson v. Faxon, 19 Pick. (Mass.) 147; Thayer v. Boston, 19 Pick. (Mass.) 511; 31 Am. Dec. 157; Simpson's Appeal, 77 Pa. St. 270.

The defendant, owning a vessel and a wharf upon a navigable stream, and finding a raft of lumber belonging to the plaintiff fastened in the stream so as to obstruct the approach of his vessel to his wharf, untied the raft, doing no unnecessary damage; and, not being in charge of any person, it floated away. It was held that he was not liable for the loss of the lumber, as raftsmen on navigable streams have no right to moor their rafts in such a manner as to deprive wharf owners of access to their wharves. Harrington v. Edwards, 17 Wis. 586; 84 Am. Dec. 768. The situation and customary use of a pier may be such as to impliedly license (authorize) any vessel to moor to it, subject to a charge for wharfage. Where the pier is built in the shallow waters of a lake, out to, but not into, navigable waters, and on the open shore, and not in any harbor, and has been used only for the private business of the owner, no implied license can arise. Dutton v. Strong, 1 Black (U. S.) 23.

One who uses a pier which projects from a bulkhead near a wharf in such a way as to prevent the owner of the wharf from using it as he had a right, is liable for whatever damages the owner sustains on account of such obstructions. Camden, etc., R. Co. v. Finch, 5 Sandf. (N. Y.) 48.

Where a city obstructed a private wharf by turning the course of a stream so as to cause sand to form an embankment in front of it, thus obstructing the approach of vessels, Archer, C. J., in Barrow . Baltimore, 2 Am. Jur. 204 observed as follows: "I cannot permit myself to doubt but that the character of the plaintiff's rights were such that he might well complain of any injury to them. He had the right which every man has to the benefits flowing from a navigable stream contiguous to his land. He had a right to pass and repass with his vessels. No man has a right to moor a vessel to his land without his consent, and if he was in the habit of asking and receiving a compensation from owners of vessels for such consent, and has been deprived

of this benefit and profit by this filling up of the navigable stream opposite to his land, he has been deprived of an important privilege and been compelled to surrender it for the public benefit. He has been disseised, or more properly speaking, deprived, of an easement appurtenant to his land, which constitutes a great portion of its value. It would be in vain to guard with such vigilance the freehold itself, if the liberties and privilege appurtenant to it were not also subject to constitutional guardianship. Over the soil covered by the water, over the water itself which belongs to the state, I need not say he has no right; but he has a perfect right to the soil of the wharf itself, to the profits growing out of the depth of the navigable water attached to it which are incident to the soil itself."

A and B were adjoining dock owners. A sought to restrain B from erecting a wooden platform alongside of his wharf, whereby the water space between the two docks would be diminished materially. Peirce, J., said: "These wharf owners have concurrent rights in the dock, and to deprive one of the lawful use of the dock and wharf that another may have more room for the storage of cargo, seems so inequitable, if not illegal, that it cannot be justified." Bailey's Appeal, 9 Phila. (Pa.) 506.

The riparian proprietor, as proprietor of the adjoining land and as connected with it, has the right of exclusive access to and from the waters of the lake at that particular point; he has the right to build piers and wharves in front of his land out to navigable waters in aid of navigation, not interfering with the public use. Delaplaine v. Chicago, etc., R. Co., 42 Wis. 215; 24 Am. Rep. 386.

In Railway Co. v. Renwick, 102 U. S. 180, the better and more substantial doctrine is laid down, that the land under the water in front of a riparian proprietor, though beyond the line of private ownership, cannot be taken and appropriated to a public use by a railway company under its right of eminent domain, without making compensation to the riparian proprietor. But see Langdon v. New York, 93 N. Y. 129. 1. In Northwestern Union Packet Co. v. Atlee, 2 Dill. (U.) S. 479, the

court, by Dillon, J., said: “Any erection or obstruction not authorized by competent legislative enactment, which materially interferes with the paramount right of navigation, is unlawful, and comes within the legal notion of a nuisance. .The river is a highway, or water way, for the use of the public, just the same as a street or highway; and individuals, for their own convenience, have no more right, without legislative authority, to obstruct the one than they have to incumber or obstruct the other. A pier built within the navigable channel, that is at point in the river where vessels may go, and where they have a right to go, is an unlawful structure in the eyes of the law. Indeed, any permanent structure which interferes with, or which may endanger or obstruct navigation, is unlawful, and cannot be legalized by any considerations of utility, or otherwise, except by direct legislative authority."

1. Suit for Private Injury.-Haskell v. New Bedford, 108 Mass. 208; Brightman v. Fair Haven, 7 Gray (Mass.) 271; Smith v. Boston, 7 Cush. (Mass.) 255; Franklin Wharf Co. v. Portland, 46 Me. 42; Wilkes v. Hungerford Market Co., 2 Bing. N. Cas. 281; 29 E. C. L. 336.

The owner of a wharf on public navigable waters cannot maintain a private action for illegally filling up such waters and thereby obstructing his access to his wharf. Harvard College v. Stearns, 15 Gray (Mass.) 1.

In Greasly v. Codling, 2 Bing. 263; 9 E. C. L. 407, Burrough, J., said: "The question in all these cases is, whether the inconvenience complained of is general, or a particular inconvenience of the party complaining; that is the point of the decisions and who can doubt about the particular injury in the present case."

No action lies for the obstruction of a navigable stream by the building of a bridge, whereby the owner of a parcel of land and a wharf above the bridge is prevented from coming to the wharf from the sea in vessels, although 29 C. of L.-6

his wharf is the only one above the bridge used for business purposes, and he is compelled thereby to abandon the use of his wharf for such purposes and to transport his goods by land at an enhanced expense. Dougherty v. Bunting, 1 Sandf. (N. Y.) 1.

In Blackwell v. Old Colony R. Co., 122 Mass. 1, the court, by Gray, C. J., said: "The fact that the plaintiff alone now navigates the stream, or has a wharf thereon at which he carries on his business, only shows that the present consequential damage to him may be greater in degree to him than to others; but does not show that the injury is different in kind, or that other riparian proprietors and the rest of the public may not, whenever they use the stream, suffer in the same way."

The owner of a wharf and dock, who dredges out a channel from his dock over flats belonging to other persons and lying between high and low-water mark, cannot recover damages, in a private suit, from a city for an injury to the channel by the discharge of sewage from a common sewer into the dock, whereby the channel is partly filled up, and the owner put to additional expense in getting vessels to his wharf; although he dredged out the channel openly and with a claim of right. Breed v. Lynn, 126 Mass. 367.

The owner of a wharf upon a tidewater creek cannot maintain an action for an illegal obstruction to the creek occasioned by emptying into the same, a short distance above the plaintiff's dock, a large quantity of gravel, sand, stones, etc., to such an extent as to damage the plaintiff seriously in the conduct of his business; but he can maintain an action for an obstruction adjoining the wharf, which prevents vessels from lying at it in the accustomed manner, this being a particular damage. Brayton v. Fall River, 113 Mass. 218; 18 Am. Rep. 470. In this case the court said: “An individual cannot maintain a private action for a public nuisance by reason of any injury which he suffers in common with the public. The only remedy is by