| NY | Oct 2, 1888
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *262 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *265 The question raised by this appeal is to be answered according to the true construction of the letters patent above set out; and, speaking from the face of the grant, it would seem impossible to hold that the plaintiff or his grantor acquired any other right than to make a wharf or dock for the use of the public, subject to such rules and regulations as the legislature might see proper to impose, with authority to collect from persons using it, reasonable and accustomed dockage, as also regulated by that body. Such is its language. The consideration of the grant is the erection of a dock, not for private use according to the views or interest of the grantee as an individual, but such dock as "shall be necessary to promote the commerce of the state," and upon a compensation "from persons using it," not fixed at the whim or by the caprice or pleasure of the grantee, but by the legislature. As the object of the act is public and coextensive with the state, it must follow that all may use the thing granted who are engaged in promoting that object; and as the use of the thing alone raises the right to compensation, it cannot be made to depend upon the selection by the grantee either of the time of using or of the persons who shall use the dock or wharf. These things are as independent of his control as are the winds and tides upon whose favorable condition an easy access to the dock may, at times, depend.
The plaintiff puts his right to maintain the dock upon the letters quoted, and that right seems to us inconsistent with an individual control, which, if now tolerated, would permit him to substitute his own pleasure for the public interest and devote a dock which came into existence because "necessary to promote the commerce of the state," to such domestic business or other uses as his views of individual interest or profit might suggest. The incongruity of such a conclusion with *266 the purpose declared by the state, through its commissioners, is scarcely lessened by the assertion of the plaintiff "that the dock in question did subserve the interests of commerce, though its use was limited to the needs of the immediate neighborhood." The grant provides for the whole state, and not the traffic of a single neighborhood.
We find nothing in the cases cited by the learned counsel for the appellant which permits a different conclusion from that expressed by the judgment of which he complains, for in none of them are the facts at all like those involved in this case. An analysis of or special comment upon them is, therefore, unnecessary. Neither is it necessary to determine whether the action was, in any view, one for equitable cognizance. That question does not appear to have been raised upon the trial, and our decision upon the merits renders it unimportant.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.