42 N.Y.S. 607 | N.Y. App. Div. | 1896
This court has had occasion very recently to consider and determine several of the questions presented upon this appeal, and in so doing has reviewed with great care and observation nearly all of the authorities cited by counsel in support of their respective contentions. Ziegele v. Navigation Co., 3 App. Div. 77, 38 N. Y. Supp. 1022. It will be unnecessary, for this reason, to go over much of the ground traversed in the elaborate briefs which have been submitted for our perusal and study, or to do more than reiterate certain propositions, or at least such of them as may seem applicable to the case in hand, which we regard as established by the decision to which reference has just been made. Briefly epitomizing, therefore, it may be said that the right which was conferred upon Isaac Holloway by the action of the canal commissioners in 1867 was a possessory right, and one which may be regarded as in the nature of a license. It was, moreover, one which, although revocable at the pleasure of the board which conferred it, was assignable certainly as against every one but the state. This being the case, it necessarily follows that the plaintiff’s right, as against the defendant, to maintain and occupy the docks or structures erected by her at a great expense, cannot be questioned, unless it appears that the same has been revoked by the power which granted that right; and, consequently, we come to the consideration of the sole question of importance arising in the case which has not already been adjudicated by this court; and that is, the question of revocation. In entering upon an investigation of this subject, we observe that no claim is made that any actual notice of revocation was ever served upon the plaintiff or her assignors, but, upon the contrary, it is conceded that nothing of the kind was done. It is insisted, however, that the privilege granted by the superintendent of public works to the defendant, being inconsistent with the plaintiff’s right to occupy and control the docks, was sufficient, of itself, to work a revocation of all former rights and privileges conferred upon her or her assignor; and, unless this position can be maintained, there is really no defense to the action.
Assuming that the defendant is in a position to raise this question as against the plaintiff,—concerning which no opinion is ex
The necessary deduction from the views which are here expressed' is that the plaintiff, being rightfully .in possession of the docks in question by virtue of an unrevoked license from the canal commissioners, was entitled to demand from a person using the same such rental value therefor as might be agreed upon, or as such use was reasonably worth, even though the party using them rested his right so to do upon some authority which the superintendent of public works had attempted to confer. The right to demand and receive wharfage does not, necessarily, rest upon the existence of the conventional relation of landlord and tenant, as is contended by the learned counsel for the respondent; but it is a right which is given by way of “compensation to persons who, under the authority of law, have constructed piers and wharves, and to remunerate them for the outlay made for the convenience and safety of vessels and the benefit conferred thereby upon commerce and navigation.” See opinion of Andrews, J.,in Walsh v. Dock Co., 77 N. Y. 448-452, and cases cited in such opinion. In this case it is conceded that the defendant used the docks, that he was notified by the plaintiff’s husband that he would be expected to pay rent therefor, and the evidence fully sustains the finding that such use was reasonably worth the sum specified therein. We think, therefore, that the judgment appealed from should be affirmed.
Judgment affirmed, with costs. All concur.