3 Paige Ch. 313 | New York Court of Chancery | 1831
The objection of the defendants, that the complainant has a full and adequate remedy at law if the wharf and wharfage, &c. are actually conveyed by the deed, probably comes too late. Objections to the jurisdiction of the court should be made by plea or demurrer, or should be specifically stated in the answer. But the nature of this property, and the necessity of removing the cloud upon the title, so as to enable the complainant to obtain his share of dockage, &c. from the dockmaster, would perhaps have been sufficient grounds for sustaining this bill to settle the rights of the par-, ties, even if the objection had been made in season. I shall therefore proceed to dispose of the cause upon its merits.
From the testimony in the case, in connection with the answer of the defendants, I am satisfied that the allegation in the answer, that they did not intend to sell the wharf and the privilege of receiving wharfage, is literally true. I think it also probable that the wife executed the conveyance in good faith, supposing it did not, and also believing that Wiswall knew it did not, cover these privileges and franchises. I cannot however, bring myself to believe that Hall supposed Wis-wall so understood the bargain. In the first place, it is incredible that a man of any kind of prudence or discretion would contract for an undefined fraction of a water lot, situated as this was, and with reference to what might have been the fine or high-water mark twenty years before. The particularity with which Hall states the terms of his paroi offers to Wiswall,
The charter of the city bounded the corporation by the Hudson river at low-water mark; and they were expressly authorized to erect wharves, and to fill in the river to that extent. The corporation also had an express grant of the profits arising from anchorage and wharfage, at the wharf or in the
The right to erect a wharf and to receive tolls for the use of the same is a franchise, and cannot be exercised by an individual, except by a grant for that purpose from the sovereign power, or by prescription, which is supposed to have been founded on a grant the evidence of which has been lost by the lapse of time. (See Chitty on Prer. 174.) The right to take wharf-age or tolls being a charge upon the public and against common right, could not be granted, even by the crown, except upon some consideration of benefit to the public—as the erection of a wharf, the keeping of it in repair," and the like ; or in consideration of a right of way given to the public over the property of the individual to whom the toll was granted. (Sir F. Moor's R. 474. 1 Term R. 660.) The corporation, therefore, having the right under their charter to erect wharves and to take tolls for the use of the same, may grant such right to the owner of a water lot, bounded on the river, as an appurtenance to his lot. In Colton v. Smith, (Cowp. Rep. 47,) a prescriptive right to the franchise of taking tolls or wharfage as appurtenant to a manor was sustained. Here it is evident that the grant of the corporation to Hall, his heirs and assigns, of the right of wharfage, &c. opposite to lot No. 22, and the south half of Lydius street, was made to him as the owner of that lot and as appurtenant thereto. The power to erect a wharf is not expressly granted, but probably it is implied. If the wharf and the right of wharfage were held by Hall as appurtenant to lot No. 22, the right to both passed to the complainant, under the term appurtenances, in the deed of 1817. The reference in that deed to the lot No. 22, “ as the same is described and has been occupied and held” under
To put the question as to the right of the complainant to the wharf and wharfage at rest, and to remove the cloud the defendant Hall has thrown upon the title, there must be a decree'maldng the injunction heretofore issued perpetual against Hall, and against all persons claiming under him; but without prejudice to the right of the wife, if she should survive her husband, to proceed either at law or in equity for any relief to which she may suppose herself entitled. The defendant T. Hall must also execute to the complainant a release or conveyance, sufficient in law to transfer the legal title, which may be still vested in him, if any such there be; the conveyance to be approved of by a master. And he must also pay to the complainant his costs of this suit to be taxed.