Wetmore v. The Atlantic White Lead Company.

destroyed such method of access to the public street, became, were and are affected and charged with the same public servitude or use, i. e. a right of way, and carriage of the vessel's cargo over such land to said public street. They became a highway by necessity. When the law gives a right of way over the private land of an individual who has obstructed or impaired an adjoining highway, a fortiori, should such right of way be given over land belonging to the state, approriated by an individual, who by such appropriation obstructs or prevents access to the highway. (Woolrych on Ways, p. 49.) This bulkhead, pier and made land have been in fact dedicated to the public use. (Angell on Highways, p. 51, § 74. City of Cincinnati v. White, 6 Peters, 431. Barclay v. Howell, Id. 498. Shaw v. Crawford, 10 John. 236.)

X. The interference with and deprivation of the plaintiff's right so to use said bulkhead and land caused a loss and damage special and peculiar to him, for which the defendant is liable. (Cases supra, VI, VII. Woolrych on Ways, 51, 53. Wiggins v. Boddington &c., 3 Car. & Payne, 544. Greasly v. Codling, 2 Bing. 263. Wilkes v. Hungerford

Market Co., Id. 281.)

XI. All the right, title and interest of the defendant in the premises in question are derived from the following sources: The deed from Hall and wife in 1845; the deed from Murphy and wife in 1849; the deeds from Brown and others in 1855 and 1856; the deed from Smith & Bulkley in 1858; and the act of the legislature passed 1848. (Laws of 1848, ch. 156, amended by act passed 1850. Laws of 1850, ch. 313.) (1.) As to the deeds, all the property therein mentioned was outside of low water mark, and belonged to the state. And there is no claim or pretense that any of the grantors in any of the said deeds ever received directly or derivatively any grant from the state. The description of the premises in the several deeds is peculiarly significant. (2.) As to the act of the legislature, it was prospective, and the land and bulkhead and pier, as now existing, had been

Wetmore v. The Atlantic White Lead Company.

made and constructed several years before the passage of the act, without authority and in violation of law. The act declares "It shall be lawful," &c. It was clearly unlawful before the passage of the act. (3.) But if the act in question could be considered retroactive, or as legalizing the continuance of the bulkhead, &c., it gives the defendant no right or title to an exclusive property in or enjoyment of the land, bulkhead, &c. in question. (a.) The act gives a license to certain persons owning lands fronting on the water, "to erect, construct, build and maintain bulkheads or wharves, and to fill in the same on the lands under water in front of their lands." (b.) No words expressing or implying a grant of the lands under water are to be found in the act. A franchise alone is given, i. e. a right to erect and maintain bulkheads and wharves, for the use of which certain emoluments are provided by the laws regulating wharfage. (2 Chit. Bl. 38, mary.) (c.) No change from public to private use is expressed or contemplated. The privilege given is in the usual form of grants of right to construct wharves, &c., a valuable franchise. (Angell on Tide Waters, 2d ed. p. 64. Beekman v. Saratoga and Schenectady R. R., 3 Paige, 73.) (d.) No grant of the land, or of any exclusive property in or enjoyment of the bulkheads or wharves, the construction of which is thus legalized, can be inferred from the act. There is no room for any such inference. The language of the act is clear and specific, and the privilege granted expressly limited. The absence of any express words allowing wharfage is immaterial. No such provision is necessary, inasmuch as the right to wharfage is a necessary incident to the right to build and maintain a wharf, and attaches to the person to whom the franchise is granted. (Lansing v. Smith, 4 Wend. 23.) The general wharfage act, fully providing for the case, renders any such provision in this act superfluous, and its absence cannot operate to turn the grant of privilege into a grant of the fee, or any exclusive property in that which by the law of the land is common. (People v. Lam

Wetmore v. The Atlantic White Lead Company.

bier, 5 Denio, 9.) The well settled rules as to the construction of such statutes forbid any such inference. All grants of privilege are to be liberally construed in favor of the public; and as against the grantees of the monopoly, franchise or charter, they are to be strictly interpreted. Whatever is not unequivocally granted in such acts is taken to have been withheld. Statutes interfering with the general rights of the subject, establishing monopolies and imposing penalties, are to be strictly construed. (Sedgwick on Stat. and Const. Law, pp. 338, 340, and cases cited. People v. Lambier, 5 Denio, 9. Lansing v. Smith, 4 Wend. 22, &c. Sprague v. Birdsall, 2 Cowen, 419.) Such an inference is repugnant to public policy and good faith. There is no consideration for a grant of exclusive property or enjoyment. No benefit or advantage would accrue to the state as proprietor, or as trustee for the citizens. (2 Chit. Bl. 38.) On the other hand, the recompense for the franchise of constructing and maintaining wharves open to the public use would, by the enhancement of the commercial interests and prosperity of the community, be inevitable and abundant. Such an inference is at war with the uniform course of legislation upon such subjects. The provisions of the acts authorizing the commissioners of the land office to grant lands under water: (1 R. S. pt. 1, ch. 9, tit. 5, art. 4; Laws of 1835, ch. 232, p. 276, § 1; 1843, ch. 239, p. 342; 1850, ch. 283, p. 621 ;) the various acts for the preservation and improvement of the harbor of New York: (Laws of 1836, ch. 484, p. 739, § 2; 1855, ch. 121, p. 191; 1856, ch. 203, p. 343, § 2; 1857, ch. 763, p. 638, vol. 2;) the several acts regulating the use and protection of wharves, &c. in the harbor: (Laws of 1837, ch. 263, p. 278, § 5; 1848, ch. 2, p. 3; 1850, ch. 144, p. 242, tit. 11, § 17; 1857, ch. 671, p. 487; 1858, ch. 261, p. 413; 1860, ch. 254, p. 416;) all evince a jealous regard for the interests of commerce, and the determination that no obstruction to or infringement upon the legitimate commercial use of all the wharves in the harbor shall be tolVOL. XXXVII.

6

Wetmore v. The Atlantic White Lead Company.

erated. And the phraseology of the several acts referred to shows that all the wharves in the port or harbor of New York are open to public use. The use in any of these acts of the words "private wharves" is not a recognition of a private use, but only of a private proprietorship or interest in the franchise, growing out of circumstances attending the construction, and distinguishing them from public wharves solely in that respect, i. e. wharves constructed in the city of New York on land under water, but upon land belonging to the city of New York, in fee, and by that city granted to individuals. The use of public and private wharves is the same, and no distinction can be made between them as to such use, except so far as the same is directed or allowed by law. The acts setting apart certain wharves in the city of New York for canal boats, and giving power to the city of New York to do likewise as to steamboats, &c., show that express legislation was necessary to secure such exclusive use. And even these exclusive uses are for public purposes-not those of an individual-and are the usual commercial uses. (Laws of 1858, ch. 261.) Such an inference is inconsistent. with the course of judicial decisions upon the subject. (Cases cited supra, points V, VI, VII, VIII.) (4.) The only effect of an act of the legislature authorizing an individual to build a wharf or bulkhead in or upon a navigable river, is to give him a right to collect the usual wharfage for its use. If he so constructed without an act, he could not demand any compensation for the use by the public. (Angell on Tide Waters, 2d ed. 208, 9.) (5.) If the act by express words, or necessary inference, purported to grant the land under water, or the land, bulkhead and wharves, to be constructed thereon, or the exclusive use and enjoyment thereof, it would be void, because it was not passed by a two-thirds vote, as required by the constitution of the state. (Const. of 1846, art. 1, § 9. 1 R. S. pt. 1, ch. 8, tit. 4, §§ 2, 3, 13, 15, 16.) XII. The right claimed by the plaintiff to land the cargo of his vessel at this bulkhead, and transport the same with

Wetmore v. The Atlantic White Lead Company.

out delay over the bulkhead and made land into Hudson avenue, was a right to the legitimate and customary commercial use of the bulkhead, &c., and the precise use thereof, contemplated by the act of the legislature referred to, and all considerations of inconvenience resulting to the defendant, by reason of such use, are immaterial and inadmissible.

XIII. The inconvenience and injury suggested by the defendant's witnesses, were to the manufacturing business carried on in and upon the bulkhead, &c., not to the legitimate commercial use by them, in common with others of the bulkhead, wharf, &c., nor to the legal emoluments accruing from such use. The defendant having illegally and wantonly appropriated to its exclusive use a public highway, cannot, in answer to the demand of a citizen who has been thereby obstructed in the exercise of a legal right, and sustained damage, claim an exemption from the consequences of its wrongful act, because such exclusive use by it of the public property is profitable to it, and that it will be injured if its wrongful appropriation and use is not maintained and protected. The suggestion has no place before a judicial tribunal. But if the question is proper to be considered here, the proof in the case conclusively shows that the inconvenience suggested by the defendant's witnesses is purely speculative and chimerical, and at the time the plaintiff attempted to use the bulkhead, &c. no detriment whatever would have resulted to the defendant from such use.

XIV. If the claim urged by the defendant was well founded, the greater part of the city of Brooklyn can be isolated and rendered inaccessible by water, (except at the ferries,) and a component part of the port or harbor destroyed at the pleasure of the few proprietors of the upland on the river. The consequent disastrous result to the most important public interests, commerce, trade and intercourse, and the inevitable and incalculable injury to the city of Brooklyn, forbid that any such claim should be entertained, even if any technical rule of law should seem or could be distorted to justify it.