§ 268 (109). By Municipality. If a municipality is itself a riparian proprietor, this will probably give to it, in the absence of any restrictive provision in its organic act or elsewhere, the implied authority to erect a wharf thereon, and it would have the incidental right, the same as a private owner, to charge compensation for its use.1 the use of the wharf by others, there belonged to the city. The action was being no obligation on the city not to build, or to permit others to build, wharves for general use within the harbor. Pacific Coast SS. Co. v. Kimball, 114 Cal. 414.

Murphy v. Montgomery, 11 Ala. 586. 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; post, $273 and notes.

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.

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 The title and right involved in the and constructed a street thereon or Lecraw case, just cited, were before the continued the street to low-water mark, Supreme Court of the United States then the right to use it as a street or three times (17 How. 426; 19 How. highway on land became appurtenant 263; 24 How. 188). The plaintiff was to the wharf property of the adjoining the owner of two wharves, called the owners; and also that if the city in Price Wharf and the Bull Wharf, the exercise of its power to make drains which extended from high to low water under the streets should so construct mark. The city of Boston (the de- them as to hinder the public in their fendant) laid out Summer Street thirty use of the streets as streets, or to create feet in width to the water, and the a nuisance to the adjoining properties, it lines of the street if extended into the would be liable therefor, since if such water would separate the plaintiff's a street be made the plaintiff would two wharves. The land under the have a right to pass along the same as waters within such extended space well as the public. In the case in 24 between high and low water mark How. 188, it appeared that the space

Its rights would be the same as those of any similar proprietor, and no greater, unless enlarged by legislative grant.

The con

§ 269. Exercise of the Power of Eminent Domain. struction of docks and wharves by a municipality for general public use is a public purpose which justifies the exercise of the power of eminent domain. To minister to the necessities of commerce by providing fit and proper places in a seaport where ships can be loaded and unloaded with all proper facilities, is a public duty owing by the State and through it by the municipality which governs and controls the port. The only standard by which to judge of the extent of the duty consists in the necessities of the business. If a permanent pier and an exclusive right to its use be a necessity of large steamship lines, without which business cannot properly be transacted, and in the absence of which steamers will resort to other ports, then the duty rests upon the State or municipality to furnish such quarters for a fair compensation, or else the State is bound to had not been reclaimed from the water, persons. In such case the title is not and that no street on land had been a public easement, but proprietary. made; and the court decided that Horn v. People, 23 Mich. 221; and see though the city was the owner of the Scott v. Layng, 59 Mich. 43; supra. land at the foot of the street between § 261, note; infra, § 271, note; § 275, high and low water mark, it could not note, as to ferry landing at foot of street. lay out a street or highway in the water 'Within the corporate limits, the of the ocean for boats and vessels; and city of New Orleans, under her charter that on the facts of the case the city was and under the general law, has the right not liable to the plaintiff, the owner of to control, manage, and administer the the wharves, for erecting drains and use of the river banks for the public sewers on the city's own land at the foot convenience and utility; to establish of the street, for the preservation of the wharves and landings; to erect works health of the city. See also Common- and provide facilities for the use of wealth v. Roxbury, 9 Gray, 451, 514, vessels and water craft; and to charge 519; Railroad Co. v. Ellerman, 105 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, 32 La. An. 856. A city may farm out by contract and ordinance the revenues arising from its wharves. The Clearwater, 75 Fed. Rep. 309. See also Matthews v. Alexandria, 68 Mo. 115.

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. Moog, 53 Ala. 561.

Wharves, whether terminating streets or not, are not streets; if owned by the city, they may be leased to private

permit the steamship companies to obtain such accommodations from private owners. Having undertaken the duty imposed upon it by the State to provide such accommodations as the interests of commerce fairly require, all appropriate acts of a city done in the performance of that duty are for a public purpose. Hence land taken for wharves is taken for a public purpose, although some portions of the land actually used may be thereafter, in the discretion of the city, divided off and placed in the exclusive possession of a lessee for the sole purpose of using it in the transaction of the necessary business connected with the loading and unloading of passengers and cargoes of ships and steamers.1

$270. Sale and Lease of Wharves and Docks. Lands under water when granted to a city are usually granted upon a public trust for the promotion of the commerce of the port by laying out streets, erecting wharves, &c. Being granted for a public purpose in the nature of a trust, the municipality has no power to alienate these lands in the absence of express authority from the legislature.' When the lands are held by the municipality upon this public trust, a power of alienation conferred upon the city must be exercised only in such method as is compatible with the trust. In other words, the purpose of the grant and the uses to which the property granted may be devoted by the lessee must be such as to further the purpose of the trust upon which the city holds the lands.' When a grant by the State to a city is made for the express purpose of facilitating the construction of wharves and other improvements. the power of alienation conferred upon the city must be exercised consistently with the purposes of the grant. In disposing of the property the ordinary method of doing so, within the purport and

not to authorize it to condemn lands for the purpose of enlarging a harbor. South Haven v. Van Buren Probate Judge, 140 Mich. 117.

Oakland v. Oakland Water Front Co., 118 Cal. 160, 189; Reighard v. Flinn, 189 Pa. 355. When authority is conferred upon a municipality to lay out wharves, docks, piers, and slips, and to authorize the construction of the same, the municipality cannot by ordinance give to a private individual the exclusive privilege of laying out, establishing, and constructing wharves for a term of years. Oakland v. Carpenter, 13 Cal. 540.

2 When a city is vested with the control and administration of batture property in trust for the public, it cannot be granted and transferred as in fee simple. The city can only grant such rights and interests therein as are compatible with the public use of the batture property as a means of access to the river. Shreveport v. St. Louis S. W. R. Co., 115 La. 885. A city cannet by ordinance grant to a railroad company the right to construct a warehouse on a levee, to be used solely for railroad purposes, and not in connection with the shipment and transportation of freight by water. St. Paul v. Chicago, M. & St. P. R. Co., 63 Minn. 330. See Barney v. Keokuk (depot on water street), 94 U. S. 324, aff'g s. c. 4 Dillon C. C. 593, and note p. 599,

citing St. Paul & P. R. Co. v. Schurmeir, 7 Wall. 272, 289. See also Illinois & St. L. R. & C. Co. v. St. Louis, 2 Dillon C. C. 70 (grain elevator on wharf property). Where a marginal street is laid out pursuant to statute to be used in connection with the wharf and bulkheads thereon, the city authorities cannot authorize the erection thereon of a permanent structure for a purpose not connected with the use of the docks and wharves, e. g., for the sale of flowers, newspapers, &c. Vilias v. Featherson, 94 N. Y. App. Div. 259.

When a grant of wharf rights and of the right to collect wharfage confers the right "from that part of the exterior line of the said city lying on the westerly side of the hereby granted premises," the exterior line is that fixed at the time of the grant. If the dock or harbor line be subsequently established by the action of the secretary of war further in the navigable waters, the line of the grantee is not enlarged. Matter of Mayor, &c. of New York, 59 N. Y. App. Div. 603, aff'd 167 N. Y. 627. If a city under statutory authority grants the privilege of constructing a wharf abutting on a public street and the grantee relying thereon expends money in such construction, he acquires a property interest in the wharf which can only be taken away by the payment of due compensation. Meade v. Portland, 45 Oreg. 1

1

intent of the statute, is to protract the streets of the city to the water front, to divide the intervening spaces into blocks and lots, and to sell in subdivisions in such a manner as to preserve to the public ample means of access to the navigable waters and to the municipal authorities ample space for the erection of wharves, piers, and docks. Similar principles govern the leasing of lands under water and wharf and dock property. A city cannot lease to a private individual any part of a public landing or wharf in the absence of statutory authority therefor, unless possibly in the case of such portions thereof as are not needed for public use.3 But in the exercise of its power to regulate, control, and manage wharves, docks, and public lands the city may, when authorized by statute, lease the wharves or docks and grant the exclusive possession thereof to lessees, provided the property be devoted by the lessees to the purposes of commerce and navigation. The fact that the exclusive possession of the property is under such conditions granted to the lessee does not deprive the property of its public nature.5

1 Oakland v. Oakland Water Front Co., 118 Cal. 160, 190. See also Southern Pac. Co. v. Western Pac. R. Co., 144 Fed. Rep. 160. A grant by a board of supervisors of the right to construct and maintain a wharf is a grant of a franchise within the provisions of a statute establishing the conditions upon which franchises and other privileges may be granted. People v. Contra Costa County, 122 Cal. 421.

2 Reighard v. Flinn, 189 Pa. 355. An owner of property, suing as such, is not entitled to enjoin a lease of a wharf for a private purpose when his property does not abut upon the wharf. Cummings v. Huse, &c. Transportation Co., 156 Mo. 28. But it would seem to be otherwise when the plaintiff sues, not as an owner of property, but as a citizen and taxpayer. See Reighard v. Flinn, 189 Pa. 355.

Union Railway Co. v. Chickasaw Cooperage Co., 116 Tenn. 594.

Dyer v. Baltimore, 140 Fed. Rep. 880; Morgan City v. Dalton, 12 La. 9; Leonard's Heirs v. Baton Rouge, 39 La. An. 275; Matter of Mayor, &c. of New York, 135 N. Y. 253; supra, § 269. Grant of the exclusive right to the occupation of a wharf or pier for forty years, for the purpose of erecting grain elevators, held to be within the power of the Montreal Harbor Commissioners. Taylor v. Montreal Harbor Com'rs, 17 Rap. Jud. Que. S. C. 275. When the

lessee of a wharf has enjoyed the benefits of the lease, he is estopped to contest the power of the municipality to make the lease. Morgan City v. Dalton, 112 La. 9. If the city has illegally leased land forming part of a public landing, and the lessee has erected structures thereon, the surrender by the lessee to the city of the leased premises with the structures erected thereon restores the premises and structures to public use, and the structures can no longer be condemned as a nuisance. Reighard v. Flinn, 194 Pa. 352. An agreement between contesting applicants for a lease by which one of the applicants withdraws his application for a pecuniary consideration is void as against public policy. Coverly v. Terminal Warehouse Co., 70 N. Y. App. Div. 82, aff'd 178 Ń. Y. 602. Where under statute a city has power to construct wharves on public property, and to lease the wharfing privileges, it was held that it has power to lease the land and authorize the building of a wharf by the lessee. It was said by Hooker, C. J., that "it would be unduly technical to say that the city must itself build the dock in the first instance, if it may build it at all." Kemp v. Stradley, 134 Mich. 676, citing text.

5 New Orleans v. Louisiana Construction Co., 140 U. S. 654; Fleitas v. New Orleans, 51 La. An. 1. Where the