Williams v. Intendent & Council

43 So. 209 | Ala. | 1907

TYSON, C. J.

The single question presented by the record is the right of the city of Gainesville to maintain a free wharf at the intersection of Water street and the Tombigbee river. The insistence seems to be that the-dedication of this, street as a public highway limits its use by the public to travel along and over it simply to the bank of the river, with no, right in the city to erect and maintain a wharf to enable the public to avail them’ selves of the rights of commerce and transportation afforded bv the river; that since complainant is the owner of the fee, and the city has only an easement, he alone has the right to maintain a wharf where the river and the street intersect.

This contention, it must be conceded, is supported by ■some of the adjudged cases; but they are not in harmony with the great weight of authority, which sustains the right of the city to “improve, ornament, and grade its streets for public convenience, either by enlargement or extension, and, with a view to public accommodation, may erect at their termini suitable wharves or landings,” and “the right of a city to erect wharves under such circumstances is not affected by the question whether the street has been regularly opened and condemned as a highway, or its use as such has been acquired by dedication, and it is unimportant, with regard to the exercise of this right, whether the law of the state does or does not recognize in the hank owner a title to the land under the water to the middle of the stream.”—30 Am. & Eng. Ency. Law (2d Ed.) pp. 484, 485, and cases cited in notes 2 and 3 on page 484 and 2 and 3 on page 485. Of the numerous cases cited in the notes we call especial attention to the case of Backus v. City of Detroit, 13 N. W. 380, 49 Mich. 110, 43 Am. Rep. 447, in which the opinion was delivered by Judge Cooley, where a learned and exhaustive discussion of' the subject may be found, sustaining the doctrine of the text above quoted. This principle was fully recognized by this court in Webb v. City of Demopolis, 95 Ala. 116, 132, 13 South 289, 21 L. R. A. 62. It is true' in that case the street ran along and parallel to the river, while here the street intersects with the river; but the. principle involved and applicable is the same.

There is no error in the deciee and it must be affirmed.

Affirmed.

Dowdell, Anderson, and McClellan, JJ., concur.