De Bary Baya Merchants' Line v. Jacksonville, T. & K. W. Ry. Co., 40 F. 392

De Bary Baya Merchants' Line v. Jacksonville, T. & K. W. Ry. Co.

40 F. 392 | C.C.N.D. Fla. | 1889

Toulmin, J.,

(orally.') 1. There is no allegation in the bill that complainant has no other means of carrying on its business and delivering its freight at Palatka and other points named in the bill for transshipment over defendant’s railroad than over the alleged wharves of the defendant.

2. There is no allegation in the bill that there are any other shippers of freight from said wharves over the defendant’s railroad except “The People’s Line” of steamers, and the bill shows that “The People’s Line” is charged wharfage. The bill does allege that said defendant railway-company does not charge or collect the said so-called “wharfage’’ from any other shippers except “The People’s Line” of steamers, hut, as I have said, fails to allege that there are any other shippers. It is implied in the bill, but is not distinctly averred, as it should he if it he a fact. There is a general averment of discrimination, but no statement of fact which shows any such discrimination. But it may he said that these are but technical objections,' and that the bill could be amended to meet- them. It would be as well, therefore, for me to express my views on the merits of the proposition contended for by the complainant, and to state why l would be constrained to deny the injunction prayed for, even if the bill was amended. .

3. Conceding that the defendant charged wharfage to the complainant as complained of, the question is, is it illegal or unauthorized by law? “There is no principle that interposes any hindrance to the re*394covery from any vessel landing at a wharf owned by an individual or by a municipal or other corporation a just compensation for the use of such property. It is a doctrine too well settled, and a practice too common and too essential to the interests of commerce and navigation to admit of a doubt, that for the use of such structures, erected by individual enterprise, and recognized everywhere as property, a reasonable compensation can be exacted.” Packet Co. v. Keokuk, 95 U. S. 80, 85; Cannon v. New Orleans, 20 Wall. 577; Packet Co. v. Aiken, 16 Fed. Rep. 895. The statutes of Florida authorize railroad companies to build and maintain wharves as incidental to their business, and for the use and convenience of jjassengers and freight transported over their roads. If the defendant has built and maintained a wharf at Palatka or anj’- other point on the St. John’s river, and such wharf is either a private or public wharf, has the complainant a right to use it without the payment of a reasonable compensation therefor, without the consent of the defendant? I think not. At least I am not so convinced that the charge of wharfage by the defendant is such as to authorize me to grant the extraordinary process of injunction as prayed for by the complainant. This is my view of the case on the allegations of the bill, and when they are considered in connection with the affidavit filed on behalf of the defendant, which states that the defendant does not collect such wharfage anywhere except at Palatka, and not there for its own use and benefit, but as agent for the owner of the wharf who resides in New York, it seems clear to me that I should not grant the injunction. Now, if the wharf-age charged is extortionate it is for the state so to regulate it. as to prevent extortion. Packet Co. v. Aiken, supra. The application for an injunction is denied.