Mayor, &c., of Baltimore, 2 Am. Jur. 204-207, "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 lands 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 lands, he has been deprived of an important privilege and been compelled to surrender it for the public benefit. He has been disseized, or more properly speaking, deprived of an easement appurtenant to his lands, 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 privileges 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 " See Stetson v. Faxon, 19 Pick. 147, where this case is approved, and also Thayer v. Boston, 19 Pick, 511; Appeal of Bailey, 9 Phila. 506; Simpson's Appeal, 77 Pa. St. 270. But a municipal corporation may construct sewers opening into the public docks, and use them in a reasonable manner for conducting and depositing therein refuse matter. If such deposits cause damages to the owner of a wharf by diminishing the depth of water about it, and thereby impair its use for the purpose for which it was constructed and had been used, causing inconvenience and injury different in kind from that sustained by the public,

and not merely different in degree or extent, he may recover damages in a private suit for such injury. But unless the damage differs in kind from that sustained by other persons owning land on the harbor, no private action can be sustained. This is a familiar principle and supported by a host of decisions: See Breed v. Lynn, 126 Mass. 218; Blackwell v. Old Colony Railroad, 122 Mass. 12; Brayton v. Fall River, 113 Mass. 218; Huskell v. New Bedford, 108 Mass. 208; Franklin Wharf v. Portland, 46 Maine 42; President, &c., of Harvard College v. Stearns, 15 Gray 1; Brightman v. Fairhaven, 7 Gray 271; Smith v. Boston, 7 Cush. 255; Greasly v. Codling, 2 Bing. 262; Wilkes v. Hungerford Market, 2 Bing. N. S. 281; Daugherty v. Bunting, 1 Sandf. 1. Nor will the fact that the plaintiff alone navigates the stream, or has a wharf thereon, show more than that he may suffer in a greater degree than others: Blackwell v. Old Colony R. R. Co., 122 Mass. 1.

The owner of land adjacent to the shore of a navigable river who obtains from the commissioner of the land office a grant of land under water, on which, after filling in, he rests a wharf, cannot maintain an action on the case against the agent of a company to whom the legislature afterwards granted the privilege of erecting a pier in the river for the purpose of constructing a basin for the protection aud safety of boats, and who erects such pier entirely encompassing the wharf on the side of the water so as to leave no communication between it and the river, except through a lock at one extremity of the basin. By authorizing the commissioner of the land office to make the grant, the legislature did not preclude itself from making a great public improvement for the benefit of commerce, nor was it taking private property for public use, nor a violation of any contract, express or implied, on the part of the state. The loss sustained

by the wharfinger in consequence of the building of the pier or the construction of the basin was damnum absque injuria, for which no action lies: Lansing v. Smith, 4 Wend. 9.

In Bainbridge v. Sherlock, 29 Ind. 364, it was held that a wharf-boat when moored to the shore is entitled to the same immunity from trespass as the land itself.

And a navigator landing at one wharf is not justified by any public right in the river, in so landing and mooring his vessel that while landed its side and stern will be carried by the current against the wharf-boat of a contiguous wharfinger, lower down the river, thus obstructing access to the lower wharf. But this case was again considered in 41 Ind. 35, and a somewhat modified conclusion reached. It was there held, that the appellees had the right to run their boat in any part of the river not then occupied by other boats or crafts navigating the river, and to stop at any wharf which their business might require. "The appellee's wharf or wharf-boat," says WORDEN, J., "is clearly entitled to no greater immunity as against a person navigating the river, than if it had been a floating craft navigating the river, in which event, in case of collision, wilfulness, negligence, or want of skill, would be necessary in order to hold a party responsible. * We have already seen that the appellee, whatever may have been the extent of his title to the soil, had no right to so construct or use his wharf as to interfere with the paramount right of the public to the free use of the river as a common highway. The appellants had the legal right to navigate the river, and every part thereof, and to stop at such wharves as their business might require. And if in doing so, they by a portion of the length of their boat, occupied the water in front of the appellee's wharf, they were but exercising a legal right and could not in so doing be trespassing. The appellee was not, in our opinion, entitled

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'to the free use of all the adjacent waters near to and in front of his wharf-boat,' as against parties temporarily occupying the same, in due course of the navigation of the river. Such a right in the appellee would be utterly inconsistent with the right of the public to the use of the river as a common highway. The appellants had the right to land at such wharf or wharves as suited their convenience, and if in doing so, the current of the river, or rather circumstances carried the stern of their boat down stream so that a portion of the boat's length lay in front of the appellee's wharf, but still in the navigable waters of the river, they were but in the exercise of a legal right, and cannot be responsible to the appellee for any consequential damages which he may have sustained by others being thereby prevented from landing at his wharf; provided, that the appellants in thus exercising their rights, exercised due care, skill and dispatch, and subjected the appellee to as little inconvenience as possible, consistently with the exercise of their own rights. Doubtless unreasonable and vexatious delay, thus wrongfully preventing ingress to and egress from the appellee's wharf, would subject the appellants to liability for the damages consequent thereon."

A wharfinger not only has the right to bring an action and recover damages for any injury actually done to his wharf, but he is also entitled to the benefit of equitable remedies for the prevention of injuries to his rights: People v. Davidson, 30 Cal. 379; Parker v. Taylor, 7 Or. 435 (and see this case as to the rights of riparian owners in Oregon). Thus a court of equity will interfere to prevent injury to a private wharf by the erection of permanent obstructions which interfere with ingress to and egress from a wharf: Penniman v. N. Y. Balance Co., 13 How. Pr. (N. Y.) 40; or to prevent a municipal corporation from interfering with the rights of the owner of a private wharf by appropriating an adjoining

slip to the purposes of a public wharf: Murray v. Sharp, 1 Bosw. 539; or the construction of another wharf in front of one already constructed: Cowell v. Martin, 43 Cal. 605; Crocker v. Mayor of New York, 15 Fed. Rep. 405. But on the other hand, a mandatory injunction will not issue to compel the owners of a private wharf to allow wharfage facilities to a particular person as well as others, when they have only exercised a reasonable discretion in excluding him on account of the extent of their business: Audenried v. Phila. & Reading R. R. Co., 68 Pa. St. 370, s. c. 8 Am. R. 195.

VI. The right to collect wharfage carries with it the correlative duty of keeping the wharf in repair. So long as a wharf is open to the public, it is the duty of those having control of it to keep it in a reasonably safe condition: Radway v. Briggs, 37 N. Y. 256; Wendall v. Baxter, 12 Gray 494; Pittsburgh v. Grier, 22 Pa. St. 54; Eastman v. Meredith, 36 N. H. 284; Jeffersonville v. Louisville, &c., Ferry Co., 27 Ind. 100; Harrison v. Municipality, Mass. 216; Carleton v. Franconia Iron and Steel Co., 99 Mass. 216; Swords v. Edgar, 59 N. Y. 28; Parnaby v. Lancaster Canal Co., 11 A. & E. 223; Metcalfe v. Hetherington, 11 Ex. 257, 5 H. & N. 719; Gibbs v. Mersey Docks, 3 H. & N. 164; L. R., 1 H. of L. Cas. 93; Longmore v. Great Western R. R. Co., 35 L. J. C. P. 135; Francis v. Cockrell, L. R., 5 Q. B. 184; Webb v. Port Bruce Harbor Co., 19 U. C. Q. B. 626; Coe v. Wise, L. R., 1 Q. B. 711; Winch v. Conservators of the Thames, L. R., 7 C. P. 471. As to the duty of keeping pier lights, see Sweeney v. Port Burwell Harbor Co., 17 U. C. C. P. 574, reversed in 19 U. C. C. P. 376.

A legal transfer of the right to collect wharfage to a third party subrogates that party to the duty of keeping the wharf in repair. Thus the lessee of a wharf was held liable for the value of a VOL. XXXI.—76

horse, cart and load of merchandise, lost by backing off the wharf into the water, where there was no suitable guard: Railway v. Briggs, 37 N. Y. 265. But where, at the time the lease was made and the delivery of possession, the wharf was in a defective and unsafe condition, and in consequence thereof, while in the possession of the lessee, an injury happened to one lawfully thereon, it was held that the lessor, who was receiving a benefit by way of rent, was liable for the damage: Swords v. Edgar, 59 N. Y. 28; and see Louisville v. Bank of the United States, 3 B. Mon. 144. Wendell v. Baxter, 12 Gray 494, was a case where the plaintiff was injured while in the employ of the lessee of a wharf. The following instructions given by the court below were held not error on appeal. The jury were instructed "that if they were satisfied that the defendants had established the wharf for the use of the public, and invited the public to use it for a reasonable compensation, they were bound to keep the wharf safe for the use for which it was made and erected at that place; that if the plaintiff, being properly on the wharf, in the prosecution of his business, and in the exercise of reasonable care and diligence, sustained the injury alleged, through a defect in the wharf, he was entitled to recover, unless the defect was latent, and so hidden and concealed that it could not be discovered by such examination and inspection as the construction, use and exposure of the wharf reasonably required; that if the defendants knew that causes rendering the wharf unsafe, were constantly or occasionally in operation, which they could, by the exercise of ordinary diligence and care, have anticipated and provided against, they were required to do so." See also Mayor v. Henley, 3 B. & Ad. 92. In Eastman v. Meredith, 36 N. H. 284, 295, PERLEY, C. J., in speaking of Pittsburgh v. Grier, 22 Pa. St. 54, said: "This case is put distinctly upon the

ground that the public duty, which was the foundation of the action, rose out of the control which the city exercised over the wharf, and the income received from the use of it." The right of action arises from the duty which the law imposes upon the owners of wharves to keep them in proper repair, and not from any contract between the wharfowner and the customer: Callett v. London and Northwestern Railroad, 11 Ad. & El. N. S. 984, 989; Wendell v. Baxter, 12 Gray 494; Mayor, &c., v. Henley, 3 B. & Ad. 92; Buckbee' v. Brown, 21 Wend. 110.

A city is liable for any damages caused by a failure to provide proper fastenings to a public wharf: Shinkle v. Covington,

1 Bush 617; People v. Albany, 11 Wend. 539; Buckbee v. Brown, 21 Wend. 110; Mercer Dock Trustees v. Gibbs, L. R., 1 H. of L. Cas. 93. Although the owner of a wharf is not bound to keep a sufficient depth of water at all times to accommodate all sized vessels, it is his duty to give imformation of inequalities of the water when necessary to protect vessels about to land: Nelson v. Phoenix Chem. Works, 7 Ben. 37. And he will be responsible for any damage caused by such inequalities, to vessels, while lawfully and with due care occupying his wharf: Barrett v. Black, 56 Me. 498; Sawyer v. Oakman, 7 Blatch. 290; Carleton v. Franconia Iron Co., 99 Mass. 216; and see Wendell v. Baxter, 12 Gray 494; Sweeny v. Old Colony and N. R. R. Co. 10 Allen 368; Elliott v. Pray, 10 Allen 378; Barnaby v. Lancaster Canal Co., 11 A. & E. 223; Gibbs v. Trustees, &c., 3 H. & N. 164; Indermaur v. Domes, L. R., 1 C. P. 274; s. c. Id. 311; Thompson v. N. E. R. R. Co., 2 B. & S. 106; P. R. R. Co. v. P. S. Co., 11 A. & E. 223. But he is not liable for damages caused by delay, occasioned by an insufficiency of water in a berth: The Bark Francesca, 9 Ben. 84. MORTON, J., in Nickerson v. Tirrell, 127 Mass. 236, 229, says: "The gen

eral rules of law applicable in cases of this character are well settled. The owner or occupant of a dock is liable in damages to a person who, by his invitation, express or implied, makes use of it, for an injury caused by any defect or unsafe condition of the dock which the occupant negligently causes or permits to exist, if such person was himself in the exercise of due care. Such occupant is not an insurer of the safety of his dock, but he is required to use ordinary care to keep his dock in such a state as to be reasonably safe for use by vessels which he invites to enter it, or for which he holds it out as fit and ready. If he fails to use such due care-if there is a defect which is known to him, or which by the use of ordinary care and diligence should be known to him, he is guilty of negligence and liable to the person who, using due care, is injured thereby."

VII. The liability of a wharfinger for goods deposited on his wharf does not differ materially from that of a warehouseman. He must take reasonable common care of the property intrusted to him, and is liable for a corresponding degree of negligence, and the burden of proving such negligence is upon the party alleg ing it Foote v. Storrs, 2 Barb. 326; Schmidt v. Blood, 9 Wend. 268; Blin v. Mayo, 10 Vt. 56; Sidaways v. Todd, 2 Starkie 357; Story on Bailment, sect. 452; Cox v. O'Riley, 4 Ind. 368. But a wharfinger must be distinguished from a common carrier. The language of Lord MANSFIELD, in Ross v. Johnson, 5 Burr. 2827, and of Lord ELLENBOROUGH in Maving v. Todd, 1 Starkic 72, favored the doctrine that wharfingers, like common carriers, were liable for all injuries except such as arise from the act of God or the public enemy. But this doctrine was ably combatted by Judge STORY, in his treatise on Bailments, and it is now settled by the decisions that he is liable only for the ordinary care required of a bailee for hire Platt v. Hibbard, 7 Cow. 502;

Garside v. Trent. Nav. Co., 4 T. R. 581; Hyde v. Trent Nav. Co., 5 Id. 339; In re Webb, 8 Taunt. 443; Roberts v. Turner, 12 John. 232; Brown v. Denison, 2 Wend. 593; Cogs v. Bernard, 2 Ld. Raym. 909, 218; Sidaways v. Todd, 2 Starkie 351. But if he undertakes to convey the goods from the wharves to a vessel by his own lighter, he assumes the responsibility of a common carrier, and will be held liable as such Maving v. Todd, 1 Starkie 59. The responsibility of a wharfinger begins when the goods are delivered on the wharf and he has expressly or impliedly received them into his care and custody: Rodgers v. Stophel, 32 Pa. St. 111; Quiggin v. Duff, 1 M. & W. 174; s. c. 1 Gale 420. But a mere delivery at the wharf is not necessarily a delivery to the wharfinger. Some act of assent, either on his part or by his agent, to the custody thereof, is necessary before he will be presumed to have assumed the character of custodian : Buckman v. Levi, 3 Camp. 414; Gibson v. Inglis, 4 Id. 72; Blin v. Mayo, 10 Vt. 56; Packard v. Getman, 6 Cow. 757.

His responsibility ceases as soon as he ceases to have the custody and control of the goods. Thus, where goods were delivered to a wharfinger to be sent on board a vessel, his responsibility ceased as soon as the goods were delivered to the proper officers of the vessel. And this, by the usage, although they remained upon the wharf: Cobban v. Downes, 5 Esp. 41; Merrett v. O. C. and N. R. R. Co., 11 Allen 80; Guss v. New York, &c., R. R. Co., 99 Mass. 227.

But a delivery to one of the crew of a vessel will not be sufficient. It must be to the captain or some one having authority to receive them: Leigh v. Smith, 1 C. & P. 638; R. & M. 224.

The usages of business in the vicinity are important to show when a wharfinger acquires and when he ceases to have the custody of goods. "By the asages and customs of business is not

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understood to be meant such customs, as from their continuance have become part of the common law, but such customs and usages as are generally regarded and adopted by the persons doing business in the vicinity, and with reference to which contracts are made. The evidence of the customs and usages of the merchants in the vicinity of defendant's wharf was properly received to show that goods landed on the wharf * * not considered as in their custody and that they did not receive and take care of them as wharfingers :" Blin v. Mayo, supra. Where the goods are demanded by the proper owner and all charges paid, or tendered, they must be delivered. But if notified that the goods in his possession bear a spurious trademark, and that their sale will be enjoined, and he is requested not to deliver them, he may lawfully withhold them: Hunt v. Maniere, 34 Beav. 157; 13 W. R. 212; 11 L. T. (N. S.) 469. If he detains goods and the owner afterwards agrees to accept them, and actually removes 8 part, he is not liable for the destruction of the balance remaining on the wharf after the owner has had a reasonable time to remove it: Carnes v. Nichols, 10 Gray 369. A wharfinger is not estopped from denying the title of his bailor: Thorne v. Tilbury, 3 H. & N. 534; 27 L. J. Exch. 407. See Biddle v. Bond, 34 L. J. Q. B. 137. But where the wharfinger had once acknowledged certain goods to be the property of the plaintiff, it was held that he could not dispute plaintiff's title in an action of trover brought against him: Gosling v. Birnie, 7 Bing. 339; M. & P. 531 : Hall v. Griffin, 3 M. & Scott 732; 10

Id. 246.

VIII. As an incident to the wharfinger's agreement, either express or implied, to properly care for goods left in his charge, he is entitled to the possession of them until delivery is demanded and due compensation made. Thus he has a special interest in the goods which the law