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380 THE WHARF CASE.
public wharves, no alteration in their location or form can divest
them of their free, open, and public character; or authorize any
person or body politic to demand and receive toll for the use of
them in any manner whatever; leaving them, however, according
to the express terms of the law, csubject to the regulation of the
corporation of Baltimore relative to public wharves.' (m)
But even supposing the body politic, in whom the absolute right
to this land had been vested, had a right to have levied a toll for
the use of any wharf, they themselves might have built upon it;
yet the contract of the 10th February, 1794, under which these
wharves were actually built by Dugan and McElderry, is totally
silent as to tolls of every description. No right is reserved to
either of the contracting parties to demand and receive wharfage
for the use of them, when made, any more than for the use of the
streets which were to be filled up as specified. On the contrary,
it is expressly declared, as a part of that contract, 'that the said
canal, wharves, and streets on each side of the said canal be a
common highway, and free for the public use, subject to such re-
gulations as the commissioners and their successors shall from time
to time establish.' Thus by express and mutual consent dedica-
ting these wharves, when made, to the use of the public, as free
and unencumbered by toll as any of the public streets of the city.
Finding no express authority either in the law, or in their con-
tract, to demand and collect tolls; these contending parties endea-
vour to deduce their claim to wharfage, the one from its ownership
of the soil, and an obligation to maintain the wharves thus erected;
and the other from his merits, as the builder of this costly and
valuable work, and from his obligation to keep it in repair.
This ground, 'commonly called Harrison's marsh,' upon which
the Legislature had provided for the building of a new market-
house and the completion of a then existing public wharf, having
been thus vested in the city of Baltimore, as a body politic, and m
general for the use of the town, was thereby laid open to the pub-
lic free of toll; and no toll having been given in the grant by
which it was so vested, none can be exacted by it from any one
-who may use either the market-house or the public wharf. For, it
is a general rule applicable alike to markets, fairs, wharves, and
roads, that where no toll is specially allowed in the grant or law
by which they are authorized and laid open, none can be de-
(m) 1818, ch. 118; 1817, ch. 71, s. 7.
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