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poration, of any legal rights which they might have thereby acquired, or interfere with any private rights of property or privileges held under grants of the corporation. By the same amendatory law, in all cases where the corporation shall think it for the public good to enlarge any of the public slips, they have full power to do so; and also upon paying one third of the expense of building the necessary piers and bridges, they shall be entitled to the slippage of the side of the piers adjacent to the slips, and also to one half of the wharfage to arise from the outermost end of the piers.' By the import of the words of this section, it was intended to apply to the case of public slips already formed, which the corporation might be desirous of enlarging, by an extension of the piers, or by sinking new piers at the sides of the mouths of the slips. According to its literal meaning, it cannot be seen, that it can authorize the making of a public slip in the first instance by sinking a pier or piers against the bulk-head or wharf opposite to private property.
A person taking out a water grant from the corporation of the city of New York for a lot of fifty feet in front on the river, and binding himself to construct a wharf or bulk-head along the entire front of the grant, and thereupon being entitled to all the emoluments accruing from it, does not deprive him
1 See 228th and 230th parts of the general law of 1813, 4 Webs. & Skinn. Ed. 414.
Verplanck v. City of New York, 2 Ed. (N. Y.) Ch. R. 220.
self of the right to any portion of the wharfage, by dedicating a part of the lot to the public, for the purpose of a street or passage. Without an actual grant or conveyance from him as owner of the upland to which wharfage, or any other incorporeal hereditament is attached, he is entitled to all such incorporeal right, as he still retains the ownership of the soil.1
By the city charter of New York, section 38, the land under the water of the East river, to the distance of four hundred feet from a line drawn from Corlear's Hook to Whitehall, was granted to the corporation in fee simple, with power to fill up and use the same. The legislature regulated this right in part, by the "Act for regulating the buildings, streets, wharves, and slips in the city of New York, passed April 3, 1801. The third section of that act authorized the corporation to lay out regular streets or wharves, of the width of seventy feet, in front of those parts of the city which adjoined to the East and North rivers, and to extend the same, with the progress of buildings, along those rivers. The fourth section provided, that such streets or wharves should be made at the expense of the proprietors of land adjoining, or nearest and opposite thereto, in proportion to the breadth of their several lots, and that the proprietors whose lots might not be adjoining to
1 Verplanck, &c. sup.
such streets or wharves, should fill up and level at their own expense, the spaces lying between their lots and such streets or wharves, and should, upon so filling up and levelling the same, be respectively entitled unto, and become the owners of, the intermediate space of ground in fee simple. The same provisions were re-enacted in the revision of 1813. A married woman owned land on the East river, which the corporation of the city directed to be extended out into the river, in pursuance of the city charter and the laws of the state; and her husband caused the designated portion to be filled up, and the land was extended accordingly. It was held, that the land thus regained from the river, belonged to the wife, subject to the life estate in the husband. If the expense had been borne by the husband himself, the addition would have been as much an accession to the wife's property, as if he had erected a store upon her land.1
The customary mode of apportioning wharfage in the port of New York, where several different persons own distinct portions of a bulk-head or wharf built in front of their respective lots, and a pier is built out in the river, at their common expense, covering or occupying the whole or part of the front of the portion of such bulk-head belonging to one of the proprietors, is, to distribute the wharfage arising
' Dickinson et ux. v. Codman et al. 1 Sand. (N. Y.) Ch. R. 214.
from the bulk-head between the piers, to and amongst the several proprietors rateably, according to the breadth of their respective lots, without any deduction from the proportion of that proprietor whose portion of bulk-head is covered and occupied, in whole or in part, by such pier, for the proportion so covered and occupied. Where the defendants were suffered to take the whole of the wharfage of a bulkhead for some years, upon the supposition of its belonging to them, and this was induced by long acquiescence or remissness on the part of the complainant, who at length asserted and proved his right; it was held, that he was entitled only to an account from the time of filing his bill. This rule applies only whenever there has been a mere adverse possession, and the delay in asserting the right is attributable to a plaintiff's own negligence or laches. If, however, there has been any fraud or wilful act on the part of a party in possession, by which the plaintiff has been prevented from calling for an account, or he is confessedly a trustee or guardian, bailiff or agent, then the above rule does not apply.1
A colonial act of Maryland of 1745, ch. 9, s. 10, enacted, that "all improvements of what kind soever, either wharves, houses, or other buildings that have, or shall be made out of the water, or where it usually flows, shall, as an encouragement to such
1 Roosevelt v. Frost, 1 Ed. (N. Y.) Ch. R. 579.
improvers, be forever deemed the right, title and inheritance of such improvers, their heirs and assigns forever." The improvements authorized by this act were those made by improvers in front of their own lots, and not of their neighbors, and the right of improvement, in cases of conflicts between parties, arising from the curvature of the shores, is vested in the elder patent, and is not divested by any subsequent patent.2
By an act of assembly of Maryland, entitled, an act appointing wardens for the port of Baltimore, passed in 1783, c. 24, s. 2, it was among other things enacted, that certain persons therein named should be wardens for the port of Baltimore; and by s. 9, that from and after the publication of the same act, "no person or persons should make, alter or extend, a wharf or wharves, without laying before the said wardens a plan of his or their intended wharf or wharves, and without consent first obtained under the seal of the board, to carry the same into effect."3 But in order to vest a title in any such wharf, it is essential, by the provisions of the act of 1745, that the grantee should have completed it according to his permission. In execution of their duties, the
1 Giraud's Lessee v. Hughes, 1 G. & Johns. (Md.) R. 219; Harrison v. Sterrett, 4 H. & McHen. (Md.) R. 540.
Wilson v. Inloes, 11 G. & Johns. (Md.) R. 351.
Smith et al. v. Yates, 2 H. & McHen. (Md.) R. 244; Wilson v Inloes, 11 G. & Johns. (Md.) R. 351.
* Giraud's Lessee, &c. sup.