64 F. 603 | 2d Cir. | 1894
Lead Opinion
The libel in this case was filed to recover wharfage charges against the steamship Idlewild for the period of 19 days during which she lay at the libelants’ wharf at the foot of Court street, in Brooklyn. The district court found that the facts established an implied agreement to pay a reasonable charge for the steamer’s use of the wharf, and decreed in favor of the libelants at the rate of $5.43 per day. Ho objection is made to this amount, if anything is due. The appeal calls in question the right of the libel-ants to receive anything for the use of the wharf, because its easterly side, where the vessel lay, was six or seven feet beyond the bulkhead line, as established by law. The answer alleges that the wharf at which the steamship was made fast was not the property of the libel-ants.
The facts, concerning which there is no dispute, were stated by the district judge as follows:
“The evidence shows that the libelants’ testator became the owner in fee of a strip of land bounded on its easterly side by the established bulkhead line, and that Downing- & Lawrence became the owners in fee of the land adjoining on the westward of the libelants’ testator; that the latter in 1878, in conjunction with Downing & Lawrence, built the wharf in question, which is 24 feet wide, and from 800 to 400 feet long. The middle line of this wharf was the division line between the two owners. The easterly line of the wharf, as above stated, was built out some six or seven feet beyond the proper bulkhead line. Prom that time until the present, the libelants, or their testator, have been in the possession and management of the whole easterly half of the wharf, and in the ordinary use thereof for wharfage purposes, and have accommodated vessels there, collecting the usual charges for wharfage. So far as the evidence shows, there has never been any interference by the state or by the city authorities with the libelants’ possession or collection of wharf-age. ® * * Ho express contract is shown in the ease of the Idlewild, but she went there in the ordinary course of business.”
Tbe east side of tbe pier is a pile pier, under wbicb tbe water flows without obstruction. At low water there are probably seven feet of water close to the pier. As a rule, no cargo is handled there.
In the argument of the case, the claimant does not rely merely upon the fact that the libelants are without title to that part of the wharf where the vessel lay, but also upon,the fact that they are trespassers upon the rights of the public, and that the easterly end of tbe wharf is technically a, public nuisance. The title and the power of the several states over tide waters and over or to tbe land under them below high-water mark, within the borders of the respective states, were recently very carefully examined in Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, and, so far as New York is concerned, were stated in People v. Vanderbilt, 26 N. Y. 292. It is only necessary to say here that the libelants have and claim to have no
The doctrine of estoppel is not confined to the case of an occupant of land who is strictly a renter, and whose debt is strictly rent. Thus, in Eastman v. Tuttle, 1 Cow. 248, it was held that “in assumpsit by A. against B. for depasturing and keeping on hay the cattle of B., at his request, on land in A.’s possession, B. is estopped to show that the title of the land was not in A., but in B., at the time the services were performed.” It is, moreover, a general principle that one who enters into a contractual relation with another is estopped from asserting, at variance with his contract, a hostile title to the subject-matter not subsequently acquired. Kinsman v. Parkhurst, 18 How. 289; Board v. Allen, 99 N. Y. 539, 2 N. E. 459. The decision in The Idaho, 93 U. S. 575, respecting the duty of the bailee of personal property to deliver it to the true owner, rather than to the bailor, is in conformity with the principle which has been stated, because the contract of bailment is to restore the property, or to account for it; “and he does so account for it when he has yielded it to the claim of one who has right paramount to that of his bailor.” In this case, the shipowners had impliedly promised to pay for the individual benefits which they received from the use of the wharf, and, so long as the state permits it to be used, their contracts must be. performed.
The decree of the district court is affirmed, with interest and costs of this suit.
Dissenting Opinion
(dissenting). I am constrained to dissent from the opinion of the court. The case seems to me distinguishable from the authorities cited as to the tenant’s liability for rent when the landlord is a trespasser. This particular structure is illegal, not because the apparent owner has built it upon the land of another, who might, himself have built it, had he chosen so to do. It is a structure whose erection by any one, whether a private person or not, is expressly prohibited by the sovereign power. No mere failure to prosecute by the public officers whose duty it is to cause its removal can change its character. I concur with the statement in the opinion of the court that, although built on land belonging to the state, “the state has no claim against the claimants for wharf-age”; but I cannot see how the persons who put the obstruction there can have any better claim. Moreover, I do not think a court of admiralty should lend its aid to individuals who, not only without authority, but in flat defiance of the express orders of the state, have placed an obstruction to navigation in that part of a water way which has been reserved as a fair way for the vessels of all comers, and who seek to make a profit out of the transaction. If claimant had used so much of libelants’ structure as was lawfully erected, the case might be different; but, so far as the facts show, the Idlewild simply tied up at the outer end of the wharf, and did not use any part of it for a landing. I am unable to differentiate this case .from one where a private person, having driven two piles into the channel
