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THE WHARF CASE. 383
obligation to maintain and keep it in repair, he may charge a rea-
sonable toll as a means of enabling him to discharge the duty thus
imposed upon him. But then to entitle himself to claim toll upon
the ground of his liability, he must shew that he has been actually
thus bound; for, if he be not encumbered with any such duty he
can make no claim to toll of any sort, (r)
But in this case, however enormous may have been the expense
incurred by Dugan and McElderry; and whatever may have been
their merits in making these wharves; the whole was nothing
more than what was necessary to a faithful compliance with the
terms of their contract of the 10th of February, 1794, from which,
or any thing else here shewn, it does not appear, that they were
under any sort of obligation to maintain and keep them in repair,
after they had been once completed, according to the terms of
their agreement. The benefit to which they looked, and which
they actually derived from the costly work, so completed by them,
was that of having an open street, and a free public wharf extend-
ing along a line of more than a thousand feet fronting on their lots,
on which they could, and did, in fact, by themselves, or their les-
sees or vendees, erect valuable edifices. And this extensive bene-
fit may fairly be considered as one to which, as prudent men, they
might safely have looked for remuneration when they entered into
this contract; and as one by which they have since been amply
compensated for all their great expense and labour in building
these valuable public wharves. There is, therefore, no ground
upon which Dugan can be allowed to demand and receive wharf-
age for the use of these wharves.
It necessarily follows, from what has been said, not only that
neither of these litigating parties have any right to demand and
receive toll from any one for the use of these public wharves; but,
that the doing so, by either of them, would be a violation of a
public right; and yet it appears, from their own account of their
proceedings, that they have, each of them, heretofore attempted to
exact from, and, in many instances, have succeeded in imposing a
tax, for their own emolument, upon the people who used these
public wharves. To tolerate such a proceeding any longer would
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(r) Hale de Portibus, 78; Smith v.. Shepherd, Cro. Eliz. 710; James v, Johnson,
2 Mod. 143; Warrington v. Mosely, 4 Mod. 320; Truman v. Walgham, 2 Wils.
293, Brett v. Scales, 22 Com, Law Rep. 349; Mayor of Yarmouth v, Eaton, 3
Burr, 1402; Colton v.. Smith, Cowp. 47.
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