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THE WHARF CASE. 381
manded; because toll being a matter of private benefit to the
owner of the soil, not necessarily incident to a market, fair, wharf,
or road, it cannot be charged in any case unless it be specially
allowed, or the owner of the soil, when he dedicates it to the use
of the public, then reserves to himself toll from those who pass
over it. (n) But in regard to the use of a market, although no
(n) Hale de Portibus, 51, 73, 76, 78; 2 Inst. 220; Smith v. Shepherd, Cro. Eliz,
710; Warrington v. Mosely, 4 Mod. 320; Truman v. Walgham, 2 Wils. 296; Colton
v. Smith, Cowp. 47; Northleigh v. Luscombe, Amb. 612; Mayor of Yarmouth v.
Eaton, 3 Burr, 1402; Brett v. Beales, 22 Com. Law Rep. 349; 1830, ch. 45, s, 3.
SMITH v. HOLLINGSWORTH.—This bill was filed on the 13th of October, 1785,
by William Smith, George Salmon, Andrew S. Ennells, Peter Hoffman, Aaron
Levering, Hans Crevy, John Moale, Andrew Buchanan, Charles Garth, John Mer-
ryman, and John McHenry, of Baltimore, in behalf of themselves and others,
against Samuel Hollingsworth and Thomas Hollingsworth. The bill stated, that the
plaintiffs were the holders of ground and property in the town of Baltimore, conti-
guous to Calvert street; that the navigable water of Patapsco river flowed to the
end of Calvert street, at which place there was and long had been a public wharf
free for the use of the plaintiffs and all others trading to and from the town; by
reason of which free public wharf all the property in its vicinity had been consi-
dered to be, and was, in fact, much more valuable; that to exclude the plaintiffs
and to draw to themselves the advantages of those benefits of a good landing place
on navigable water, the defendants, under pretence of authority, obtained from the
port wardens, under the act of April, 1783, ch. 24, had filled up a space of nine feet
wide, in front of this public street and wharf, extending into the water one hundred
feet, so as considerably to narrow and obstruct the dimensions of and access to the
public wharf; that the defendants are preparing to extend these obstructions two
hundred feet further into the harbour; and that the port wardens cannot legally
authorize any such filling up, or extension of their fast land as is pretended to have
been given to these defendants. Whereupon these plaintiffs prayed, to be quieted
in the enjoyment of their ancient rights; that the defendants might be restrained by
an injunction; and for general relief, &c. This bill was sworn to by only one of
the plaintiffs. And an injunction was granted as prayed.
To this bill the defendants put in their answer, in which they stated, that they
were the owners of a lot of ground binding on Calvert street and the navigable
water of the river Patapsco, which having a right to improve, according to the pro-
visions of the act of April, 1783, ch. 24, they had accordingly improved and ex-
tended into the navigable water; and with the license of the port wardens they
had extended the fast land of their lots in front of the street and wharf as alleged in
the bill, in all which they were well justified by law, &c,
After the filing of this answer proofs were taken, and the case was brought before
the court for final hearing.
5th November, 1787.—ROGERS, Chancellor.—The motion of the defendants to dis-
solve the injunction heretofore issued in this cause, came on to be heard, and argued
in the presence of counsel concerned for the parties aforesaid; and the bill, answer,
exhibits and proofs, being read, and appearing as hereinbefore set forth; and the
said motion being heard and argued by counsel on both sides; and this court being
of opinion, upon due consideration, that the wardens of the port of Baltimore town
had not authority to grant to the said defendants the permission, in the bill and
answer aforesaid mentioned} to extend the public street aforesaid called Calvert
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