
    The Contractors to rebuild and support Union Wharf and Pier in New-Haven against Hemingway and others.
    In 1732, the proprietors of undivided lands in N. H. granted to certain subscribers, their heirs and assigns, forever, full liberty to erect and maintain a wharf on the flats ; and at the same time, voted, that they would not allow any wharf to be erected within three rods on the Eastern side, and four on the Western side. In 1760, these subscribers were incorporated. A contract having been made by this company, with certain individuals to rebuild and extend the wharf, these contractors, together with the former stock-holders, were, in 1810, incorporated, under a new name, with all the rights and privileges of the old company. This association, in whatever form it has existed, has claimed and exercised the right to receive whar-fage on all goods transported by water, and landed upon their wharf, or which were shipped therefrom, as well as from vessels lying there. A tariff of wharfage has existed from a period as early as 1746. In 1815, a new tariff, previously made out by the company, was confirmed, by an act of the General Assembly, in which was this item : “ all goods landed from or put on board of coasting vessels, to pay wharfage,” &c. In 1826, an arrangement was made between the Wharf Company and the F. Canal Company, by which the basin of the latter was to be connected with the wharf of the former ; and it was also agreed, that the canal boats and goods transported up and down the canal within the basin, should be free from wharfage from said wharf, the Canal Company keeping in repair that side of such wharf which was enclosed within the basin ; and it was also provided, that the powers and rights not especially granted should be retained by the Wharf Company. The basin was secured, by a wharf, running from the main land on the East, to the wharf of the Wharf Company on the West. This wharf and the wharf of the Wharf Company are free, open, public highways. H. was the owner of packets running from New-Haven to New-Yorlc, and back, which came up and discharged at the basin wharf, more than three rods East from the wharf of the Wharf Company; and the goods thus landed upon basin wharf were transported across the other wharf, to the store of H., on the West side thereof, or upon such wharf to the main land ; and were, in like manner, transported and shipped, by means of the basin wharf, into said packets. Held, that H. was liable to pay wharfage on such goods to the Wharf Company. [One Judge dissenting.]
    
      New-Haven,
    
    July, 1837.
    This was ail action of assumpsit for the wharfage of goods ; tried at New-Haven, January term, ] 837, before Church, J,
    In December, 1731, after the failure of a previous attempt, the proprietors of undivided lands in the town of New-Haven, at a legal meeting, granted to so many of such proprietors as should be inclined to subscribe for the purpose a certain sum of money, full and free liberty to erect, set up and maintain a wharf on the flats, thirty feet wide, of such course towards the main channel as should best answer the end proposed : to have and to hold to the said subscribers, their heirs and assigns forever. Ata meeting of such proprietors, in December, 1732, after referring to the preceding grant, it was voted, by the proprietors, that they would not allow any wharf to be erected within three rods onthe Eastern side and four on the Western side, of said wharf. An association was afterwards formed, and a wharf erected. As early as the year 1746, a tariff of wharfage, established by the proprietors, is known to have existed. In 1760, an act of incorporation was obtained, by the name of The Union Wharf Company in New-Haven. In 1802, a contract was made, by this Union Wharf Company, with certain individuals, to rebuild and extend the wharf; and in 1810, the General Assembly incorporated the present company, under its present name, giving to the plaintiffs the l ights and privileges of The U?iion Wharf Company.
    
    
      The wharf has always been a free, open public highwayj to pass and repass upon ; but the company have claimed and exercised the right to receive wharfage on all goods transported by water and landed upon their wharf, or which were shipped therefrom, as well as from vessels lying there. In 1815, a tariff of wharfage, previously made out by the company, was confirmed, by an act of the General Assembly, in which was this item : “ All goods landed from or put on board of coasting vessels to pay wharfage, &c.” In 1822, the Farmington Canal Company were incorporated; and in 1826, being about to form a basin near the upper part of the plaintiffs’ wharf, there was an arrangement made, by which it should be connected with such wharf; and it was thereby agreed, that the canal boats and goods transported up and down the canal within the basin, should be free from wharfage, from the plaintiffs’ wharf; and the canal company were to keep in repair that side of the plaintiffs’ wharf connected with, and enclosed within, the basin; and it was further provided, that all powers and rights not especially granted, should be retained by the plaintiffs. The grant of the fiats upon which the basin was to be formed, was made upon condition that this agreement was ratified. The canal company then went on and formed their basin, and secured it, by a wharf running from Tomlin-son’s wharf on the East, to the plaintiffs’ wharf on the West. This basin wharf was also used as a free public highway.
    The defendants were owners of packets running from New-Haven to Neio- York and back ; and also owned stores or warehouses on the West side of the plaintiffs’ wharf; and these packets came up and discharged at the basin wharf, more than three rods from the plaintiffs’ wharf; and the goods thus landed upon basin wharf were transported across the plaintiffs’ wharf to the defendants’ store, or upon the plaintiffs’ wharf to the main land; and were, in like manner, transported and shipped, by means of the basin wharf, into said packets. .
    On the trial, it was not claimed, that it made any difference as to the rights of the plaintiffs, whether the goods were brought to and from the defendants’ store to the packets, or up and down the plaintiffs’ wharf; as the plaintiffs had, for thirty years, claimed and exercised the right of collecting wharfage on all goods brought upon their wharf, by land, from any adjoining wharves and yards, or landed at said wharves and yards, and carried up the plaintiffs’ wharf; though the right tQ wjlarfage on goods re-shipped without landing on the plaintiffs’ wharf, had been a subject of litigation about the year 1814. It had been the usage for the packet owners to pay the w}jarfage on g00C]s landed from their packets, and those taken on board of them. The defendants had paid wharfage on these goods to the canal company, and were indemnified by that company ; and now claimed, that they used the plaintiffs wharf in no other manner, than as a public highway ; and so they could not be responsible to the plaintiffs for wharfage.
    The court left to the jury the question whether the plaintiffs’ wharf had been used by the defendants, in any other manner than as a public highway ; and whether the goods were landed bona fide and without fraud upon the canal company, and shipped, in like manner, on board the defendants’ vessels. The jury returned a verdict for the defendants ; and the plaintiffs moved for a new trial, claiming that, upon the facts admitted and proved, they were entitled to recover.
    
      Baldivin and Kimberly, in support of the motion,
    contended, 1. That the plaintiffs were entitled to wharfage under the tariff established by the proprietors, and confirmed by the act of the General Assembly in 1815. In the first place, the case is within the language of the tariff: “All goods landed from or put on board coasting vessels,” &c. Secondly it is clearly within the spirit of that provision. The benefit to the defendants, and the injury to the plaintiffs are the same, as if the goods were taken from or put on board of the vessel, at the point of junction of the two wharves.
    2. That the plaintiffs are entitled to wharfage, in the present case, as a common right of charge for the use of their property, independently of any legislative sanction. The proprietors have always exercised the right of fixing and altering, from time to time, the compensation to be paid by individuals, who avail themselves of the accommodation afforded by the wharf. They have always charged wharfage on goods brought upon or carried from the wharf to or from a vessel at anchor, at any distance therefrom ; also, for goods landed upon the adjoining wharves, if carted up the wharf.
    3. That the plaintiffs are not- restricted in this right of charge, by any thing contained in their original grant of the flats, or otherwise. Such restriction is not within the language or the spirit of the grant; and is palpably inconsistent with the manifest design of the parties. Nor are the plaintiffs restricted in this right of charge, by the junction of the basin wharf with the plaintiffs’ wharf; nor by any act of the plaintiffs in relation thereto. Such effect was never contemplated, by either the wharf company, the canal company, or the proprietors of the flats. On the contrary, it is apparent, that the object contemplated by all parties, was a rim of a basin to hold water for the purposes of the canal; a wharf, only for the convenience of transacting the appropriate business of the canal company. Certain exemptions from wharfage were made, by the parties, but this case does not come within the exemptions ; and to leave no doubt on this subject, all other rights are expressly reserved. The consequences of the defendants’ claim, show it to be preposterous. The canal company had full knowledge of the practice of charging wharfage on goods landed on adjoining wharves, when they erected their basin wharf.
    
      Hitchcock and Townsend, contra,
    remarked, that as there had been no contract in fact between the parties, and no evasion by the defendants, if the plaintiffs can recover, it must be, either by reason of their rights of property, or by virtue of the privileges granted them by the-State. They then contended, 1. That the plaintiffs have no title or right to the basin wharf where the goods for the wharfage of which the action is brought, were taken from and put on board the defendants’ vessels. The basin wharf belongs to the canal company; it was built by them, pursuant to their charter, at their own expense, on flats granted for the purpose, by the proprietors. But whether the canal company have a perfect tide or not, the plaintiffs have no right or title beyond three rods East of the East side of their wharf. See the grant of December, 1732. There is nothing in the nature or character of wharf property, which gives rights beyond the boundaries of the property.
    2. That the goods, for the wharfage of which this action was brought, were not landed at or shipped from thejdain-tiffs’ wharf; but at the basin wharf, and there only. Landing is a single act: it is the removing of the goods from the water on to the land; and when the goods are once on the land, the landing is completed. So shipping is a single act: ^ -3 £jje removing 0f the goods from the land on to the water; anc¡ unt¡{ they are on the water, they are not shipped. Any subsequent or prior act is transportation ; it on land, transportation by land ; if on water, transportation by water.
    3. That no other use was made of the plaintiffs’ wharf for the goods in question, than to transport them thereon, as one of the public highways in the town of New-Haven. This was claimed by the defendants, as a matter of fact, on the trial; and the jury have found it accordingly. The goods were landed on or shipped from the basin wharf: they were transported on the plaintiifs’ wharf from or to the basin wharf. The basin wharf itself is a free, public highway, by dedication. As soon as erected it was dedicated to the public, as a highway, by its owners, the canal company ; and the public accepted the dedication, by using it for the purpose.
    4. That the plaintiffs have no right, under any of their grants from the state, to demand payment for the mere use of their wharf, as one of the public highways in the town of New-Haven. [Here the counsel went into an examination of the grants of 17fc0, 1801, 1810, 1815 and 1819.] The grant of 1815 is the important grant ; and from that source, if from any, the plaintiffs must derive the right claimed. But there is not a word in that grant, which gives the least countenance or plausibility to such a claim. It begins “ Wharfage — Long-Wharf, New-Haven.” It then goes on to provide for three classes of cases. 1st, Vessels. That, of course, has no bearing on this case. 2nd, Goods landed on or shipped from Long-Wharf. But it has already been shewn, that the goods in question were never landed on or shipped from that wharf. 3rd, Special Cases. Of these, several are provided for; but not one that in the least resembles the present. [The counsel examined them in order.] The plaintiffs, therefore, wholly failed to show any evidence in their grants, for the right which they claimed of imposing a toll on this free, public highway.
    5. That the plaintiffs cannot charge for the use of their wharf as a public highway, on the ground of any usage proved in the case. The usage insisted upon is, in relation to the wharves and yards on the West side of Union Wharf. First, usage cannot be resorted to, except to explain the meaning of provisions otherwise doubtful. 8 Conn. Rep. 575. 2 Johns. Rep. 3S2. 7 Conn. Rep. 470. It cannot extend the meaning of plain grants : it cannot give a corporation new powers or rights. But in this case, there is nothing doubtful to be explained. The grants of the plaintiffs are unequivocal, and clearly give no such right as is claimed. Secondly, the usage, in the cases insisted upon, was wholly different from the present case. It related to the West wharves and yards, erected under grants from the plaintiffs, and on their flits. Heuce, the plaintiffs insisted, that they were a part of their own wharf, and subject to the same charge. The question ivas substantially as to the boundaries of the plaintiffs’ wharf, having no bearing upon the present question. But there has been a usage from the first erection of the wharf, in cases precisely the same as the present; and that usage has been, that no toll has ever been paid. The wharf has been a public highway, without charge, for all the uses to which other public highways are put; and this usage, if any, ought to govern. Now, for the first time, do the plaintiffs come forward, and claim to restrict the use of their wharf as a public highway, and to take from it its free character.
   Williams, Ch. J.

Although the documents exhibited on the trial of the cause, are numerous, the dispute is within a very narrow7 compass. The jury, by their verdict, have negated the idea of any attempt of the defendants to evade the rights of the plaintiffs. The question, however, is really between the owners of the twro wharves; the Canal Company having indemnified the defendants.

What then, are the respective rights of these companies? That the Union wharf is a free, open, public highway, is not denied. But the plaintiffs claim, that they have the right to demand compensation for all goods brought by water, which are landed upon, or pass over their wharf; and upon all goods transported over or shipped from their wharf: and this seems not to be denied, on the part of the defendants ; but they claim, that as these goods were first landed upon or shipped from Basin wharf, and transported up or across the plaintiffs’ wharf only as a public highway, therefore no wharfage can be demanded.

To determine this, we must look back to the origin of this r¡g.],it 0f wharfage. In the infant state of the town, it seems to have been an object of great solicitude, by the inhabitants, that •' & a wharf should be erected, by individuals, lo aid tiie commerce town_ After several ineffectual efforts, the proprietors, in 1732, voted not to allow any wharf to be erected within three rods of the East side of the proposed wharf, nor within four rods of the West side ; thus holding out to those, who would embark in this enterprise, that if this wharf should become a public highway, those who, by means of it, imported or exported their goods, should not be allowed the facilities of another wharf, by which they could avoid a reasonable compensation for the expenses incurred in this then novel, but important undertaking. Soon after, and as we may fairly presume, in consequence of this vote, the original wharf was erected. Under this grant, though the wharf became a public highway, yet those who used it, to import or export goods, always paid a compensation therefor, under the denomination of wharfage; and it has not been denied but that, if goods imported were landed at a pier, and then transported in a boat or on the ice, to this wharf, and landed there, or transported over it, they would have been subject to wharfage: and if another wharf had been built four rods distant, and goods imported were landed thereon, and then brought on to this wharf, upon the same principle, (hey must have been subject to wharfage. If such a wharf had been extended to the main land, the owners of this wharf could not complain, although it deprived them of much of their profits; because they must have known originally, that they were liable to this competition, and they were willing to risk it. But as this wharf was erected for the accommodation of the importers and shippers of goods, it is but reasonable that those who used it for that purpose, should make compensation therefor; and although the goods imported or shipped might first rest upon a pier or upon the ice, or even another wharf, yet if they were placed upon this wharf for the purpose of reaching their place of destination, we think there is nothing in the fact that they were first placed upon another wharf, more than upon a pier or the ice, which would exempt them from wharfage. They obtained the very accommodation, which this wharf was designed to give — a landing upon a structure connected with the main land. And when we con-sidev, that by the grant, no wharf was to be erected within four rods of this, we think that goods brought from such a wharf to this, to be transported to their place of destination, may be fairly said to be landed upon this wharf, and so, in the strictest sense, subject to wharfage. Had there been no connexion between this wharf and the Canal wharf, these goods must have been brought in boats to the wharf of the plaintiffs, in which case, they would have been literally landed on their wharf, and would certainly have been subject to wharfage.

How then, is the case altered, by the arrangement made between the corporations? The Canal Company had no right to unite their wharf to the Union wharf, or to build within three rods of it, without the consent of the plaintiffs. An arrangement, however, was made; and it is immaterial at whose request; and that consent wras given ; but upon certain terms and conditions. One of these conditions was, that the side of the Union wharf enclosed within the basin, should be free from wharfage for canal boats, and all articles transported either up or down in them ; and the Union Wharf Company retained to themselves all powers and rights not especially granted to the Canal Company.

The first-mentioned provision clearly show's what was intended to be granted, as it regards wharfage — an exemption from wharfage on goods brought down or carried up the canal and canal boats ; not how'ever upon all, but such only as should come or send their goods within the basin. How frivolous would this arrangement have been, if the claim of the defendants is admitted ! How idle to provide, that goods coming down the canal might be free from wharfage, if all goods from any place, were to be free from wharfage !

If it should be said, that this exemption applies only to goods first landed upon Union wharf from the canal boats, it would deduct very little from the weight of the argument; for a3 these wharves were to be connected, whether the goods were first landed upon one or the other, would be a matter of trifling consequence in such an arrangement.

But further, the Union Wharf Company, after the exemption, which is the only thing said about wharfage, expressly reserve all rights and privileges not expressly granted; and as they had granted no exemption but the one before stated, all other rights to wharfage which they before had, remain with that corporation. Had not this junction of the two wfaarveg been made, we have seen, that the plaintiffs would ^ave keen enl¡tled to wharfage, upon all goods landed, directly or indirectly, from a vessel upon their wharf, for the purpose of ar|-jvjng a[ their final destination, by means thereof; or upon goods shipped therefrom, in a similar manner. If goods imported have once been transported from a pier or wharf to the main land, then they may be no mere liable to wharfage, than any other goods brought from the. country, to the stores on the wharf; but goods brought by water, and landed on or transported over the plaintiffs’ wharf, for the place of their destination, cannot free themselves from wharfage, by resting upon a pier, or the ice, or even another wharf. They cannot be said to be landed, in the one case, more than in the other. The Canal Company, when they took this grant from the Union Wharf Company, must have understood, that nothing was intended to be granted, but what was expressly granted ; and they then received a grant of the flats, upon which their wharf and basin is founded, from the proprietors of the town, upon the express stipulation, that this agreement between the Union Wharf Company and the Canal Company be ratified. They therefore agreed to build their wharf under these conditions and stipulations. But by the claim now made, tlie Union Wharf Company are not to retain the power and enjoy the privileges they before did. The Canal Company are to take from them all the business, which the space their wharf occupies will permit, and at the same time, subject the wharf of the plaintiffs to a great share of the damage incident to such business. Such a construction of this contract, the court cannot accede to. We consider it contrary to good faith ; and contrary to the spirit of the contract and the intent of the parties, who, at that time, seemed desirous to guard the rights of the plaintiffs with great care. As between these corporations, therefore, every principle of law, as well as of justice, is in favour of the plaintiffs ; and this suit is in fact, though not in form, a suit between these companies ; for the defendants are indemnified by the Canal Company.

It is true, however, that the defendants’ indemnification may fail; and they must have a right to be heard in their own de-fence. How then do they stand ? The plaintiffs would have had a right to exact wharfage of them upon these goods so placed upon their wharf, before the erection of the canal wharf. The defendants must, then, show how that right has been lost or varied ; and for this purpose, they must rely upon the rights of the Canal Company ; and if this company have no rights, as against the Union Wharf Company, to intercept their claim of wharfage, we do not see how the defendants can resist the claim. That they have paid their wharfage to the Canal Company, may evince what has been found by the jury, that there was no design to avoid wharfage ; but it will not show, that the plaintiffs were not entitled to it. And if the plaintiffs would have been entitled to wharfage, aside from the intervention of the canal wharf, the defendants must show, that by means of that wharf, this right was lost. And when the very instrument under which the wharf was erected, shows, that the plaintiffs’ right of wharfage was retained, it is not easy to see how the defendants can shelter themselves under it, more than the Canal Company.

To a majority of the court, then, it appears, that the plaintiffs, upon the facts admitted and proved in this case, are entitled to wharfage; and of course, there must be a new trial.

In this opinion Btssell, Huntington and Waite, Js. concurred.

Church, J. dissented.

New trial to be granted.  