2 Denio 625 | N.Y. Sup. Ct. | 1846
I am of opinion that the charge to the jury is sustained by the principle that there is a license implied by law to all persons navigating public waters, to occupy such erections as the dock in question in the manner and for the purposes contemplated by the owner, and for which they are constructed; and that it was not necessary for the plaintiffs in this case to make an express application to the owner for permission to do so. The keeping such dock, like keeping an inn, confers a general -licence to all persons to occupy it for lawful purposes. The mind of the owner in such cases •is presumed to assent to such acts.
The plaintiffs’ occupancy being lawful, the defendants could not terminate it by setting their vessel adrift so as to endanger its safety, until they had put the plaintiffs in fault. That might have been done by a request to remove the vessel followed by neglect or refusal on their part to comply with it, within such time as under the circumstances would be reasonable. If the plaintiffs’ entry into the dock had been tortious, then indeed the defendants had a right to cut loose'their vessel and to remove it from their premises, doing no unnecessary damage in order to the enjoyment of their rights.
The injury complained of was voluntary, and if wrongful,^ die plaintiffs were under no obligation legal or moral, to take any steps to mitigate the consequences to the defendants. A new trial must be denied.
New trial denied.
