
    
      C. J. Dow v. O. B. Hilliard et al.
    
    Case ordered for new trial, rather than re-argument, where it involved interests affecting the public at large, and of far greater moment than those which were the immediate cause of the suit; where the questions involving these interests had not been sufficiently noticed or argued, and where the delay would be as long by an order for re-argument, as by an order for a new trial.
    
      
      Before Frost, J. at Charleston, October, 1848.
    TRESPASS FOR DAMAGES.
    By indenture, dated the 27th of August, 1806, between the' City Council of Charleston and Christopher Fitzsimons— Fitzsimons, in consideration of five dollars to him paid by the City Council, grants to the City Council, for the purpose of widening Market-street, a piece of land marked A, and colored yellow in the plat, annexed to the deed, measuring in front on East Bay street, 19 feet, and easlwardly, 267 feet, to be held as part of Market-street, forever; with a proviso, that the City Council shall, within 18 months from-the date of the indenture, extend the slip, erected on the east side of Governor’s bridge, to the whole distance'of 267 feet, and shall also, within 18 months, fill up, each side of the Canal to the full width and extent of 267 feet. And Fitzsimons further covenants that the piece of land marked B, and colored red on the said plat, measuring 19 feet in width andexr tending eastwardly, from the piece A, 370 feet to low water mark, shall always remain open and unbuilt upou. On this last mentioned piece, Fitzsimons reserves to himself the right of landing all produce and merchandize, &c. and of loading the same on board of any vessel, &c. and to have the profits of said landing and loading; but this reservation not to divest the City Council of the right to make such use and regulations respecting Market-street, sixty feet wide, as they may see fit.
    At the date of,this indenture, Market-street, from East Bay street to low water mark, was located on land over which the fide flowed for,a great part of the way, and certainly flowed along the piece B, as it does now. The indenture recognizes the extension of Market-street to low water mark ; with a width of sixty feet; but no evidence was offered to show that Market-street was laid out, by any public authority, before the date of the indenture. An Act of the Legislature was passed in 1807, for the widening of Market-street, which declared the same to be a public street,'east-wardly to low water mark? By the fifth section of the Act incorporating the Gity of Charleston, (1783,) the fee simple of any vacant low water lots, fronting any of the streets, was vested in the City Council.
    On the north side.of Market-street (sixty feet wide) is situated a piece of land corresponding, in measurement and locality, with the parcels on the south side, marked A and B on the plat. This piece was acquired, by the City Council from General Pinckney, for the purpose of widening Market-street, subject to conditions and reservations, similar to those contained in the indenture between the City Council and Fitzsimons. By an agreement between the City Council of the one part, and Hilliard and his co-defendants of ihe other part, it is stipulated hy the latter, that they shall build a slip on this piece of land twenty feel wide, and extending east-wardly 465 íeet; and that they shall mu a ferry boat for ten years, acmsr Cooper river to Mount Pleasant, and by the (.lily Council it is stipulated that Hilliard and his co-defendants shall have the exclusive use of the slip for the landing of passengers, and other uses of the ferry, for the term of ten years; but the City Council does not surrender the control of the water, adjoining the slip, nor the right of landing, nor the use of the dock by fishing boats. '
    Charles L. Trenholm is lessee of Fitzsimons’s whaif, fora term of seven years, at an annual rent of $8.500. The plaintiff was master and owner of a vessel lyiug on the noith side of the piece of land B, being there mooted for the purpose of unloading goods, &c. on the said piece of land, which is part of Fiiz’sitnous’s wharf. When so moored the defendants’s steam ferry boat ran into the plaintiff’s vessel and damaged it; for which injury tins action of trespass is brought.
    The defendants justify the alleged wrong and injury under the license granted to them by the City Council, to navigate Market-street with their steam ferryboats; and on the ground that, by the indenture between the City Council and Fitz-simons, the right of Fitzsimons to lade and unlade goods, &c. at B, is subject to any other use the City Council may see fit to make of Market-street, and cannot be claimed or exercised by Fitzsimons to the obstruction of the defendants’s right, under the license granted to them by the City Council; and that, even if the reset vatiou, by Fitzsimons, to lade and unlade goods at B, should be construed into a grant to moor vessels at B for these purposes, the same is void, because the City Council'had no power to make any such grant.
    The jury were instructed that when a grant is made by indenture, and the grantor reserves any right, matter or thing, pertaining to the subject of the grant, though the same were not parcel of the thing granted, such reservation by the grantor has in law the force and effect of a c ’'’enant by the grantee, that the grantor shall have and enjoy the thing reserved. In giving effect to the indenture, such a coustiuciion should,if possible, be adopted as may make all the stipulations of the several parties consistent and operative, so that one shall not be destructive of another. When Fitzsimons reserved the right .of lading and unlading goods, &,c. at B, the right’to moor vessels for that purpose at B, was necessarily included. It may be presumed that, without this reset vation, Fitzsim-pns would not have made the grant and covenants contained in the indenture, for which the nominal consideration of five dollars could not have been a compensation. But the right reserved by Fitzsimons to lade and unlade goods at B,, would be completely divested, if, under the right, retained by City Council, to tuake such use and legulations respecting blanket-street, 6U feel wide, as they may see fit, it were held that they may make such use of it while the tide ebbs and ■flows over the land, as would prevent Fitzsimons from mooring vessels at B.
    Respecting the power of the City Council to grant to Fitz-sirnons a license to moor vessels al B, it may be admitted that the City Council cannot lawfully create a nuisance by the grant of a license to obstruct a public street. But it is no obsti action of a street, flowed by the tide, that it should be used by boats and vessels, in the carriage of persons and goods. It can be used in no other way. Even if such use be not a common right, it cannot be objected to the grant of a license by the City Council, so to use it, that the grant is void, as creating a nuisance. Besides, there is no evidence of the dedication of the low water lots, frouting Market-st. as a public street, before the date of the indenture. By the charter of the city the fee simple of the low water lots fronting Maikei-sfreei, was vested in the City Council. Theteis no evidence of any former grant of the land. Under this grant the City Council may confer an easement on the land.
    But even if the plaintiff’s vessel, by the position it occupied, were a public nuisance, that could not justify the de-fendanis’s trespass. It is necessary for the defendants’s justification that they should show that they were obstructed by the plaintiff’s vessel in the exercise and enjoyment of a legal right vested in them. It was no more a nuisance for the plaintiff’s vessel to be moored in Market-stree.t, than for the defendants to navigate the street with their ferry boats. The defendants can, then, only justify the trespass complained of under their agreement with the City Council. But if it is unlawful for the City Council to grant a license to Fitz-simous to moor vessels in the street, it is equal 1 y unlawful for the City Council to grant a license to the defendants to navigate their steamboats and moor them in the same street.
    In accordance with these instructions the jury found for the plaintiff damages to carry costs.
    The defendants appealed, on the grounds:
    1. Because the place in which the plaintiff’s schooner was lying at the time of the injury was a public highway.
    2. Because his Honor charged the jury (and instructed them to find accordingly) that the true construction of the reservations, contained in the Fitzsimons deed to the City Council of Charleston, was that the City Council had granted to C. Fitzsimons and those- claiming under him, the right io place vessels of any size in the position occupied by the
    
      
      
    
    
      plaintiff’s schooner at the time of the injury, and to keep them there while loading and unloading; whereas the truev construction, it is respectfully submitted, is that the City Council made no grant of any right to Fitzsimons, who only reserved the same right to land on the piece designated on the plat accompanying the said deed by the letter B, which he had before the said deed was executed.
    3. Because his Honor erred in charging, the jury (and so instructing them to find) that the City Council had a fee in the locus in quo, at the date of the deed of C. Fitzsimons, and could rightfully grant to Fitzsimons the use of it, now claimed by the lessees of Fitzsimons’s wharf.
    4. Because, even if the City Council had the right to grant such use of the locus in quo, and did grant the same to C. Fitzsimons, they reserved the right in the same deed to make a grant such as they have made to the defendants; and the grant to Fitzsimons was made subject to such use as is now granted to the defendants, who cannot, therefore, be obstructed in their enjoyment of it by the owners or lessees of Fitz-simons’s wharf.
    ■ 5. Because his Honor refused to charge the jury that the proper office of a reservation in a deed, was to retain rights previously possessed by the party reserving ; but, on the contrary, charged the jury that the reservation in the Fitzsim-ons’s deed, in his own favor, operated as a grant to him from the City Council.
    6. That the verdict was contrary to law and evidence.
    
      Porter, city attorney, & Me Crady, for the motion.
    
      Petigru, contra.
   Curia, per Frost, J.

This case was submitted to the jury on the statement and admission of the facts by the parties respectively. The deed under which the devisees of Christopher Fitzsimons claim the contested right of wharfage and dockage, was stated to be an indenture between the said Fitzsimons of the one part, and the City Council of Charleston of the other part; the case was argued as if the deed was an indenture; and it was assumed in the instructions of the Circuit Judge to the jury, that the deed had been executed and delivered by both parties, which was necessary to an indenture. It was accordingly held that when Fitzsimons granted to the City Council a piece of land on the south side of Market-street, and reserved the right of lading and un-lading goods, wares and merchandize on another piece of his land, bounding on Market-street, which he did not giant to the City Council, though the said right of lading and unlad-ing were not parcel of the land granted, yet the reservation by the indenture had, in law, the force and effect of a covenant by the City Council, that Fizsimons' should have and enjoy the easement reserved. This agrees with the law as laid down in ¡Sheppard's Touchstone. All the parts of a deed indented, in judgment of law, do make up but one deed ; and they are esteemed the mutual deeds of either party ; and either may be bound by either pait of the same. And the words of an indenture are the words of either parly. And a||ie¡t (j^y spoken as the words of one party only, yet they are not his words alone, hut may be applied to the other parly, if they more properly belong to him ; for every wotd that is doubtful shall be applied and expounded tobe spoken' by hi it to whom they will best agree, according to the intent of the parlies; and they shall not be, taken more strongly against one, or beneficially for the other, as the words of a deed poll.

The distinction b' tween a reservation by indenture, and by deed poll, was not noticed by the attorneys for the appellants, in the argument in this Court; and the fac.t, that the deed was executed only by Fitzsimons, was only brought to the view of the Court by the attorney.for the appellee, towards the close of his argument. '

Lord Coke says, reserve cometh of the Latin reservo, that is, to provide for store,- as when a man departeth with his laud, he reserveth or provideth a rent for his own livelyhood ; and sometime it hath the force of saving and excepting. So sometime, it served) to reserve a new thing, viz: a rent; and to except part of the thing in esse that is granted., And in another place he says, note a diversity between an exception (which is ever part of the thing granted, and of a thing in esse,) and a reservation, which is always of a thing not in esse, but newly created or reserved out of the laud or tenement demised.

It ha.s been affirmed, for the appellee, that theCifyCounc.il having accepted the deed of Fhzsimons, and taken the land granted, they must take it charged with the reservation contained in the deed. If the right, to lade and unlade goods with the right of wharfage and dockage, claimed as a neces-saty incident, was newly creat d or reserved out of the land granted, then the. City Council, when 'they took the land granted, must have taken it subject to the reservation. For one may grant a thing and retain a part of it, .or a part of those things which pertain to it; and the part which he retains is his, as it always was. If one by indenture or by deed poll grant land, reserving a rent, which is a profit issuing out of the land, or a right of common or of way, which are to be exercised on the land, and the grantee enter, he takes the land subject to the reservation. But it is otherwise if the reservation be not part of the thing granted in esse or crea-tec* out °f 'it. In Butler’s note the distinction is made, that if land is leased to two, and only one puts his seal, but the other agrees to the lease and enters and takes the profits, he shall be charged to pay tie rent, though he has not put his seal ro the deed; but it there is a condition compiised in the' deed which is not parcel ot the lease, but a condition in gross, if he does not put his seal to the deed, though he is a party to the lease, he is not party to the condition. The same principle applies to a reservation of a thing in gross. As if Fitzsimons, when he granted the piece of land, had reserved a rent or right of way out of «mother piece of land, the property of the City Council, or had reserved a negro or other chattel, belonging to the City Council, it seems that the acceptance of Fitzsimons’s grant of the land would not have operated as a grant by the City Council, of the rent or right of way out of another piece of land, which could only he made by deed, or have transferred to Fitzsimons a title to the negro or other chattel.

If Fitzsimons could not claim wharfage and dockage by the reservation in his deed, may he claim it by prescription? It is said in the argument, that he and those claiming under him have enjoyed the easement from the date of the deed to the present time. No evidence was produced at the trial, in support of such prescriptive right. But the claim of the right by prescription, is supported by a plat of Fitzsimous’s land, made in 1807, and produced in evidence by the appellants, in which he reserves the right of wharfage and dock-age on every part of the piece or parcel marked B.

If Fitzsimons and those claiming uudei him cannot maintain the right of dockage and wharfage, by force of the reservation in his deed or by prescription, can the same be maintained as a right common to all persons to use Market-street continued, where flowed by the tide, as part of the public highway — the river? This depends on the effect of the grant to the City Council, by the charter, of the fee simple of the low water lots fronting Market and other streets, and the Act of 1807, which declared Market-street continued to the channel of the river, to be a public street. Has the City Council, as grantee iu fee simple of the low water lot, fronting Market-street, the same proprietary rights with other grantees of low water lots, so that, by erecting piers and reclaiming the land irom the current of the river, they may acquire an exclusive right to the use of the dock thus formed ? And if they had such right before the Act of 1807, declaring that Market-street continued shall be a public street to the channel ot the river, what is the effect of that Act on their proprietary rights as grantees? Is there any distinction between l he City Council and a private person in the right to exercise all acts oí ownership over land vested in them respectively, over which, by law, a street or highway may be established before and until the street be made, or the high-wav be actually demanded and laid out for the public use? Some of these questions, affecting the disputed claim of the owners of Fitzsimons’s vvhaif, to wharfage and dockage in Market-street continued, have either not been noticed m the argument, or have been insufficiently argued. It is proper that the case should be re-argued ; and it is not, therefore, the intention of the Court to decide, in this opinion, any of the questions which have been suggested as affecting the decision of the case. There will be as long delay by an order for re-argument, as by an order for a new trial. The Court will adopt the latter course, because the case is not submitted merely to decide the right of the plaintiff to recover damages for the trespass of the defendants ; but to determine a claim to the use of Market-street dock, which is very important to the corporators of Charleston, and to the public at large.— The parties will be more fully prepared at a second trial to make and maintain all the points which may be important to their respective claims; and the case will have a more deliberate consideration, which is due to the public interest in the subject oí the suit.

The motion is granted.

O’Neall, Evans and Wardlaw, JJ. concurred.

Motion granted.  