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368 THE WHARF CASE,
the tide, and being so entitled to it, all the appurtenant and inci-
dental benefits and advantages thereof accrued to him as its owner;
that having, under his contract with the commissioners of Balti-
more town, at an enormous expense filled up the grounds and
made the wharves in that part of Market space binding on his lot
so extended, a right accrued to him in consideration thereof to
demand and receive wharfage on those wharves, of which he could
not be deprived by these plaintiffs so long as they permitted the
canal and wharves to remain.
The plaintiffs having put in a general replication to this answer,
a commission was issued and testimony taken and returned, from
which it appeared, that at times wharfage had been collected by
Dugan, and at other times by the city authorities. After the return
of the commission with the testimony, the parties filed the follow-
ing agreement in relation to these three cases.
'The above bills being cross bills and concerning the same sub-
ject matter, it is agreed, that they be all set down for final hearing
together; and that the testimony taken or admitted in either case
be considered and received as testimony in all of the above cases,
That the agreement and compromise with the McElderrys made
by The Mayor and City Council be filed as evidence in the cases;
and that further proof after a decree is passed in these cases may
be taken by either party before the auditor in order to shew the
amount of wharfage received by either party on the wharfage in
question.'
13th June, 1831.—BLAND, Chancellor.—These cases standing
ready for hearing, and the solicitors of the parties having been
fully heard, the cases were, by consent, permitted to stand over
with leave to amend the pleadings, which having been made, they
were submitted without further argument, whereupon the proceed-
ings were read and considered.
This case might have been as well brought before the court in
one as by all three of these bills, since they all alike present the
same questions, whether the right to demand and receive wharfage
upon these wharves belongs exclusively to The Mayor and City
Council of Baltimore; or to Cumberland Dugan? I shall there-
fore consolidate the cases and dismiss them as to the heirs of
Thomas McElderry, deceased, who seem, by their neglect, and by
the compromise of the city with some of them, and with others
who claim under them, or their ancestor, to have abandoned the
; thus leaving the controversy to be decided between the City
of Baltimore and Dugan alone.
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