« AnteriorContinuar »
eral (attorney-general), who entered a complaint will be most interesting to American lawyers. The with the Court of Appeal of Turin, of the same gen- author begins, more Americano, with the list of the eral character as a mandamus or quo warranto with newspapers which have contained articles favorable us; to which Signorina Poët answered with great to the admission of women to the bar, of which he ability, maintaining her legal and moral right to enumerates twenty-five in Italy, and seven in other practice, the substance of her argument, with liberal European countries, and on the her side only three. extracts, being given in the book. Among other all Italian. The former, he says, neither blame nor instances she cited the case of “ Signora Foltz," of approve the decisions of the courts, but they deSan Jose in California, who “ admitted to the bar mand the passage of a law which shall clearly "fill in 1881, has been able to maintain five children of so enormous a void.” Then we are presented with tender age, with the fruits of her professional lab- the opinions of the other councils of the order of bors." Alas! the star of Belva Lockwood had not advocates, in answer to a request from the council then risen above the Italian horizon!
of Turin. The council of Naples declined to exTo this the procuratore-general replied, contend press an opinion. The council of Milan gave no ing that the law and public policy forbade women official opinion for want of a quorum, but its illusto enter the “milizia togata ;” and sneering at poor trious president gave his opinion that unmarried Mrs. Foltz's case as having taken place in a "falda” women and widows were admissible to practice, (skirt) of North America. Signorina Poët was heard but not married women. The council of Venice, by in rejoinder, and the Court of Appeal, after due de- a majority vote, expressed an opinion adverse to the liberation, delivered its judgment to the effect that right claimed for women; and the council of Rome, the inscription of Signorina Poët upon the roll of like that of Milan, failed to procure a quorum. But advocates at Turin was illegal. From this decision, many illustrious professors of jurisprudence, and the Signorina appealed to the Court of Cassation of advocates, members of these councils whose names Turin, where, after full argument, the decision of and the summary of their arguments are contained the court below was affirmed. The opinions of the in the book, gave opinions at length in support of two courts are given in extenso by our author from the right of women to practice; several of the discusthe decision of the court of last resort, our author, sions having taken place at public meetings, or in and the other supporters of woman's right to prac- the course of lectures at the public institutions. tice, appeal to the public opinion of Italy, with Our author also gives the arguments of those who the ultimate intention of calling upon the Italian espoused the other side, upon several of whom, parParliament to redress a grievous wrong, as they ticularly upon an unfortunate Professor Gabba, he characterize the ruling of the two.courts.
empties floods of irony and sarcasm. Inasmuch as The arguments of the parties, and the decisions the example of the United States was often quoted of the two courts, are exceedingly interesting and by those on the ladies' side, it occurred to a Signor instructive; they discuss the question at great Taverni, a teacher in the University of Padua, to length; from every standpoint. Upon the question "interview" our minister at Rome, Mr. William of the construction of the statute the pith of the Waldorf Astor, and Signor Taverni gave the argument on the one side is that the words used results of the interview in an address before a large are of the masculine gender, and that long estab- public meeting held in Rome on the 18th of April lished custom and sound policy forbid a construction last, which was attended by many ladies and genof this statute which will include women. On the tlemen of all nations. The part of his address, other side it is contended that in this statute, as in which referred to Mr. Astor, produced, a Roman all others, masculine words include women; that al- newspaper says, a deep impression, and gentlemen though women had not actually practiced at the bar, and ladies present took notes of it. Mr. Astor is they have distinguished themselves, through many reported to have said “that the public opinion of centuries of Italian history, in studies, lectures and the Americans was not in favor of the exercise of treatises connected with jurisprudence and other professions by women, inasmuch as the female physciences, and are now actually practicing other pro- sicians, lawyers, etc., practicing in America, do not fessions; that the laws of “redeemed Italy” have belong either to the aristocracy of money or to that emancipated them from their former disabilities; of intellect. Nevertheless Signor Taverni favored and that there is now no rule of public policy which the admission of women to the learned professions, excludes them from the forum.
not only for the reasons urged by others in support These arguments are greatly extended and pro- of that view, but also because there are in Italy in fusely illustrated throughout the entire work with a round numbers, 250,000 marriageable women “who fervidness of language and a richness and boldness will never have a husband, and are condemned to of metaphor and illustration, which sound very odd be eternal maidens ; “for those," he continues, and quaint to us, colder blooded Anglo-Saxons, “neither wives nor mothers, there is no family obwhose taste prefers the discussion of scientific ques-ligation, and if society does not accord to them the tions in a much less fervid and glittering style. I right to exercise professions, the risk is run of makcannot attempt within the limits to which I must ing of them so many nihilists." restrict myself, to do justice to either the courts, It appears that the literary ladies of Italy bave the disputants or the author; but I will select, for also taken up the discussion of this question, and very brief consideration, a few of the points which they are quite as much divided in opinion thereupon as the men. As might be expected, where the men of the courts in Signorina Poët's case, wherein it argue so fervidly, some of the ladies push their ar- was held that the ancient customs and usages of guments to the extreme. From an article by one Italy forbade the extension to the statute relating of them whose name the author says that he sup- to advocates of the ordinary rule of construction presses “out of respect to her," the following ex- that masculine expressions include women, he gives tracts are given:
many instances of Italian women who have been “How would a lawyeress (avvocata) be able to distinguished for their learning and abilities in jurconsult with her clients, when she was attacked by isprudence as well as in other sciences. Among the nausea of the first months of pregnancy? And them in the thirteenth century were Dotta Accurafterward what a figure she would make in court, sio, professor of civil law in the University of when, the months of her interesting situation being Bologna; the sisters Calderini, who taught civil advanced, her curved lines become crushed with an law, one in the same University of Bologna, and anterior round line? And if the pains should come one in that of Padua; Maddalena Buonsignori upon her in the heat of argument! That would in- who wrote a book “De Legibus Connubialibus ; " and deed be fine! Would she invite her colleagues to in the fourteenth century, Novella D'Andrea; proserve her as midwives? And in childbirth, farewell fessor of canon law in the University of Bologna, to business! Poor clients! I assure you that I who, while delivering her lectures, "in order that laugh to myself thinking of the ridiculous figure the scholars should not be distracted, covered her that a woman lawyer would make.” To which our most beautiful face with a thick veil.” Various author sarcastically adds, “And let us leave this women are also mentioned as eminent professors of lady to laugh, and thus she will make good blood, and writers upon medicine, letters and philosophy; and will see her own curved lines increase, without one of whom, Laura Maria Gaetani Bassi, 1732, giving cause for any malignant remarks."
at the age of only twenty-one years, was made profesA lady on the other side says “You say that sor of philosophy, and after thirteen years service in women-lawyers are ridiculous. Why, I beg, any that capacity, was promoted to the chair of experimore than women editors? ” (She is addressing an mental physics, in which she continued for thirtyeditoress). " And you add, that nothing can save four years, having to the last the esteem and respect a woman lawyer from the laughter of the public. of all, and the veneration of the numerous scholars Does this good public laugh, when it sees from the who flocked to her lectures; and she was, in adwindow of the railway car, either first class or third dition, & most exemplary wife and mother. Another class, along-side of the track, the mother or the boast of the University of Bologna was Maria wife of the watchman, with his (uniform) cap placed Gaetana Agnesi an illustrious author whose treatise over her headdress, waving the little green flag, was regarded by the University of Paris as covering which shows that the way is clear for the hissing every thing then (1748) known upon the differential machine? You continue, women who are intelli- and integral calculus; and who was also during all gent, courageous and honest will find work every her life of eighty-nine years so distinguished for where. But that is not true, and the women law- works of charity that she was known as “the conyers prove it. They wish to work, to earn a living soling angel of the poor.” She received her apas you do as a journalist, and I as a teacher — by pointment from the Pope. Summing up these and defending from the bar the widow and the ward; other like cases, our author after noting that the and you drive them away, although they are intelli- Italian Universities are open to women, indignantly gent, because they have studied, learned, obtained asks, what distinction can be made between degree the same degree in jurisprudence as a man; cour- and degree? Shall a degree in jurisprudence conageous, because they have presented themselves to ferred upon a man open to him the career of an adseek for work, in spite of the prejudices and out- vocate, and the same degree conferred upon a woman cries of the crowd; honest, because they wish only to compel her to mend stockings or rinse out the washwork, and to work honestly. You repelling them, ing? in effect say to them, with your degree, if you wish The next chapter relates to the question whether to live, make stockings!”
the authorization by the husband of a married The book contains much more of this very vi- woman is necessary in order to enable her to exercise vacious writing, but I must hasten to a conclusion. the legal profession. Upon this point there is a A chapter follows entitled “The common law and great difference of opinion among those who mainwomen lawyers; " then another in which the author tain that women should be allowed to practice. contends that advocateship is not a public office. The author states all the arguments with his characThe next chapter relates to Italian legislation as af- teristic fullness and fairness. These involve considerfecting women lawyers. Under this head the au- ations of some peculiar featuresof the Italian law with thor gives with great fullness the substance of the reference to restrictions upon the general power of various statutes relating to and affecting women married women to conduct their own business, in all capacities; thus laying before his readers whereby the husband's consent is required, in any a very interesting account of the present state of the matter wherein the woman may incur a liability. “woman question” in general in the Kingdom of The author concludes with his own opinion, which Italy. Coming down to that part of the decision is to the effect that although a procuratore (attorney),
may render himself liable not only to costs and pun- proposed ferry structures. These plans have been apishment, but to an action for damages, an advocate proved by the proper city authorities; and the de
fendaut being about to begin the erection of these incurs no liability whatever, and therefore a mar
atructures, the plaintiff seeks to enjoin the prosecuried woman does not require her husband's author- tion of the work on the ground that it will ivflict irreity to enable her to practice as an advocate. parable injury on his alleged riparian rights as lessee
This very brief and imperfect summary of the of the premises along the bulk-head line at the head first part of the learned advocate's work will enable of the slip between Twenty-second and Twenty-third my readers to form some idea of the mode in which streets, by occupying nearly one-half of the slip at a
distance of 145 feet directly in front of his bulk-head, Italy is agitated by the question which has also thereby obstructing his business in the slip and on vexed us so much. Doubtless the second part, re- shore as at present conducted. The proposed ferry lating to the social question, will prove to be equally is evidently conducive to the public convenience and interesting and instructive.
utility. No irregularities are suggested in the deMONTGOMERY H. THROOP.
fendant's proceedings. I must assume therefore that
the defendant has all the authority for the erection of ALBANY, N. Y.
these structures which the city or the State could con
fer; and a work thus authorized, and for the publio RIFARIAN RIGHTS- PUBLIC GRANT--INJUNC
benefit, should not be arrested at the instance of a TION-FERRY.
private party, unless both his right and his injury be clear and certain. Taylor v. Brookman, 45 Barb, 106.
I am not satisfied that the proposed structures would CIRCUIT COURT, S. D. NEW YORK, JULY 15, 1884.
not leave the complainant in the enjoyment of all the
rights which he can legally claim; and without TURNER V. PEOPLE'S FERRY Co.*
reference to the other points raised, the injuncExclusive riparian rights do not attach, as a matter of course, tion, pendente Itte, should on that ground be de
to a grant of lands under water. Whether they do so or nied. not, depends upon the express terms of the grant, or upon The plaintiff in March, 1881, leased from the executhe intent of the parties as shown by prior use, by the obtors of John L. Brower certain premises between ject of the grant, or by other circumstances from which Twenty-second and Twenty-third streets for nine the intent may be inferred. In the absence of an express years from May 1, 1881, with the privilege of a renewal grant of the right of wharfage, and of any manifest intent
for ten years afterward. The premises leased are deto convey it, no exclusive right of wharfage passes as in
scribed in the lease as bounded on the east “along the cident to a grant by the state of land under water, below East river,” and no reference is made in the lease to
high-water mark, in a harbor or navigable stream. any bulk-head or wharf, or to any wharfage or ripaAn injunction to restrain the prosecution of a work, like a rian rights of any kind. The complainant hired the
new ferry, of great public convenience and utility, should premises for the purposes of a coal-yard, expecting to not be granted at the instance of a private party alleging receive and to deliver coal in boats moored along-side threatened damage, except his right and his injury be
the bulk-head, as he has hitherto done. His affidavit clear.
states that at times he has had twenty canal boats The defendant being about to erect new ferry structures, moored there at ouce. It appears however that prior
under authority from the State and the city, in the slip to this lease the Pennsylvania Coal Company, a forbetween Twenty-second and Twenty-third streets, East mer lessee, had been accustomed to receive and to deriver, occupying nearly half the slip in width, at a distance liver coal there in like manner, using the bulk-head as of 145 feet from the bulk-head, far below the original a place of landing; and that this privilege enhances high-water mark, on motion by plaintiff for injunction as the rental value of the premises. It can scarcely be obstructing his riparian rights along the bulk-head as doubted that this use was contemplated by the lessor, hitherto excerised, held, that no exclusive riparian rights as well as by the lessee,and that the terms were in refwere established in the plaintiff, and that all the access erence to it. The complainant has sublet the northwhich he could legally claim was still left him, and the erly half of his premises to Clark & Allen, who have injunction was denied.
erected thereon a grain elevator, used in connection OTION for injunction to prevent the erection of with the landing of boats at the bulk-head. It must
be assumed therefore under such circumstances, that ferry structures.
the lease to the complainant was intended to pass and Anderson & Howland, for complainant.
did pass, as an incident thereto, whatever rights of M. J. O'Brien and S. G. Clarke, for defendant.
wharfage the Brower estate held. Huttemeier v.
Albro, 18 N. Y. 48; Voorhees v. Burchard, 55 id. 98. It BROWN, J. A motion is made for an injunction, could not pass more. What their rights were, is the pendente lite, to restrain the defendant from erecting turning point. its proposed ferry-rack and ferry-house along the
The premises in question are far to the eastward of southerly side of the Twenty-third street pier, in the the line of 400 feet below low-water mark, and hence slip between the wharves at Twenty-second street and
were formerly the property of the State, from which Twenty-third street, East river. The defendant was
Brower's title to the lots and his rights of wharfage, if empowered by act of the Legislature (Laws 1882, ch. 193) to establish and operate a ferry from near Broad-any, must be deduced. Omitting any reference to
various acts and grants by the Legislature and the city, way, Brooklyn, across the East river to Twenty.third which present some complications of title, and which street, New York; and to acquire the necessary fran
are set forth in detail in the elaborately considered chise therefor. It subsequently acquired this fran
case of Nott v. Thayer, 2 Bosw. 10, the view most fachise by purchase from the city of New York, at pub- vorable to the title and rights of John L. Brower is lic auction, at a fixed yearly rental; and it also ob- that which deduces the complainants' alleged title tained a lease from the city of the Twenty-third street from the act of the Legislature of April 9. 1813 (Laws pier. It bas given bonds for the performance of all the 1813, ch. 86, SS 220, 221), in connection with the ordivarious conditions of the lease, and of the franchise to
nance of the common council of December 31, 1856, layoperate the ferry, and has submitted its plans for the ing out East street. By the act of 1813 (re-enacting * S. C., 21 Fed. Rep. 90.
the act of April 3, 1798) the Legislature authorized the
mayor, aldermen, etc., in brief, to lay out streets or that a grant of such lands, even with a right to erect a wharves in front of those parts of the city which ad- wharf expressed in the grant, was by implication of join the East river, and from time to time to lengthen law not an exclusive grant of wharfage rights; but and extend said streets and wharves, to be completed that such rights, so long as they were not wholly cut at the expense of the proprietors of land adjoining or off, were subject to be modified and abridged through nearest; that such proprietors should fill up the spaces other grants and other harbor regulations for the publying between their lots and such streets and wharves; lic benefit, without compensation. Lansing v. Smith, and that upon so filling up and leveling the same they 8 Cow. 146; 4 Wend. 9, 22-24. And in the case of should become owners of said intermediate spaces of Gould v. Hudson River R. Co., 6 N. Y. 522, it was held ground in fee-simple.
by the Court of Appeals that an owner of upland On December 31, 1856, the mayor, alderman, etc., along high-water line on the Hudson river had no expassed an ordinance establishing East street as an ex- clusive riparian rights below that line, and hence susterior street along this portion of the East river. tained no legal damage from a railroad embankment Without stopping to inquire whether the ordinance, built under a grant from the State which cut off his and the proceeding to acquire title under it, were valid access to the river. This decision has never been under the act of 1813, but assuming them to be so, questioned as a rule of property in this State. See East street, as thus laid out, would cross Twenty- | People v. Tibbetts, 19 N. Y. 523, 528; People v. Canal third street along the westerly line of Avenue C ex- Appraisers, 33 id. 461, 487. It was cited, and its printended; and the same ordinance directed the existing ciples reaffirmed, in the recent case of Langdon v. numbered streets to be extended to East street, and Mayor, etc., supra, where the decision rested upon an that the proprietors of lands nearest to or opposite express grant of wharfage rights. East street, as thus established, should make and As establishing a law of property, these decisions complete the strees and fill in the intermediate spaces would be binding I think, under section 721 of the by January 1, 1860. Before this ordinance was car- United States Revised Statutes, as rules of decision in ried into effect, the work was arrested by the action the Federal courts, even if there was no authority in of the harbor commissioners, appointed under the act the Supreme Court on this subject. Barney y. Keoof March 3, 1855, whose report, confirmed by act of kuk, 94 U. S. 338. But the decisions of the Supreme the Legislature, passed April 27, 1857, fixed the exte- Court are of precisely the same effect. rior bulk-head live in that vicinity, as it now exists, far In Yates v. Milwaukee, 10 Wall. 504 (relied on by the within the proposed East street, and prohibited any complainant's counsel), the rights of even a strictly solid filling in beyond this bulk-head line. This line riparian proprietor are declared to be “subject to such is somewhat to the eastward of Tompkins street (since general rules and regulations as the Legislature may discontinued), and is between Avenue A and the ex- see proper to impose for the protection of the rights tension of Avenue B. The Bower estate, it is claimed, of the public, whatever these rights may be." But in acquired the fee of the land between Tompkins street the subsequent case of Weber v. Harbor Comrs., 18 and this bulk-head line of 1857, by filling in the in- Wall. 57, the Supreme Court held that a grant from termediate spaces, as provided by the act of 1813; but the State of land under water in the harbor of San as I must assume, it did not build either the Twenty- Francisco up to the exterior line of the bulk-head, second street or the Twenty-third street piers, nor did where the city already had by law the control of the it ever obtaiu any express grant from the city of the wharves and of wharfage rights, did not confer on the lots lying east of Tompkins street, or of any right of complainant any riparian rights as against the city; wharfage thereon. As incident to the land thus filled and his bill filed to prevent such rights from being in, it is claimed that the Brower estate acquired ri- wholly cut off was dismissed. That case in all essenparian rights, and the rights of wharfage along the tial particulars was analogous to the present. It is bulk-head. It is along this bulk-head, between true that the complainant there had built out a wharf Twenty-second and Twenty-third streets, that the for his own use. But the complainaut here claims complainant, as lessee, alleges that his riparian rights certain exclusive privileges in the slip beyond the bulkare threatened with injury.
head, which involves the same principle. It was not As I have before said, none of the premises occu- there proposed to abate the complainant's wharf as a pied by the complainant were any part of the original nuisance, but to surround it by a larger wharf, and apshore; they were a part of the harbor of the city of propriate it to the public use. Had the complainant New York, and far below even low-water mark. Ri- there been held to have had any right to exclusive parian rights do not attach, as a matter of course, to a privileges along his bulk-head, he would have been engrant of such lands under tide-water. A right of titled to his injunction or to compensation. But the wharfage in such cases, as an incorporeal heredita- court say: ment, must be derived either from the express terms “The complainant is not the proprietor of any land of the grant, as in Langdon v. Mayor, etc., 93 N. Y. 129, bordering on the shore of the sea in any proper sense 150, and in Marshall v. Guion, 11 id. 461, or from the of the term. * * * There is no just foundation for clear and manifest intent of the grant, as shown by the his claim as riparian proprietor. He holds, as bis surrounding circumstances, such as prior use, or the predecessors took the premises, freed from any such declared intention of the grant. Langdon v. Mayor, appendant right. * * * They took whatever inter93 N. Y. 129, 144; Voorhees v. Burchard, 55 id. 98; Hut- est they obtained in subordination to the control by termeier v. Albro, 18 id. 48. In the absence of an ex- the city over the space immediately beyond the line of press grant of wharfage, or of such manifest intention, the water front, aud the right of the State to regulate the city or the State, as the case may be, may make the construction of wharves and other improvements. successive grants of its lands under water,each in front * Having the power of removal (of the comof the former, to different grantees, without any viola- plainant's wharf), she could, without regard to the extion of the rights of either; and neither the first nor istence of the wharf, authorize improvements in the the last grantee will acquire any exclusive riparian harbor, by the construction of which the use of the privileges. None of such grantees are in any proper (complainant's wharf would necessarily be destroyed." sense riparian owners at all; and riparian rights do Pages 65-67. not attach to such grants. Weber v. Harbor Comrs., 18 The same principles were again affirmed and applied Wall. 57, 67. In this State where the common law on in Barney v. Keokuk, 94 U. $. 324, and in the recent this subject prevails, and the State is owner of the case of the Potomac Steamboat Co. v. Upper Potomac soil below high-water mark, it was long since settled Steamboat Co., 109 id. 672; 8. C., 3 Sup. Ct. Rep. 445,
where it was held that a public street intervening be- parian rights; while the city is to take the benefit of tween complainant's lots and the established river the wharves which it builds, and with them the use of front cuts off any exclusive riparian rights in the the slips for the purposes of wharfage. No intention owner of the lots on the opposite side of the street, to confer riparian rights on the owner of spaces filled whether the fee in the street be in the public or not, iu can be deduced from the act of 1857, wbich pre. the complainant not having any express grant of vented the construction of the proposed exterior wharfage rights.
street. The Federal decisions are in accord therefore with As the estate of Brower therefore obtained no right those of this state, so far as respects riparian rights of wharfage by the terms of any grant, nor by any inattaching to grants of land under water in harbors or tention of the city or State, from whom it derives along navigable rivers. I find no case where any such | title, it has not in my judgment any legal right, as exclusive rights are recognized, unless they are de-against the city or its grantees, to convert the bulkrived from the State or the city in express terms, or head into a wharf, and maintain it as such as a means else by necessary implication from the circumstances of private emolument; nor even any proprietary right of the grant. But if the act of 1813 and the ordinance to the use of the slip adjoining the bulk-head as a of 1856 be looked to as sources of the grant of a right place for landing its own boats, to the exclusion of any of wharfage, no allusion to wharfage or to any ripa- necessary use by the publio under the city or its lesrian rights on the part of those filling in the intermed- sees. It may doubtless land boats there by sufferiate spaces, is found there, except on condition of ance, as any other citizen might do; but it has no right their having built the wharves or piers, which it is not to obstruct the use of the slip, or of any part of it, here claimed that they did; and the whole tenor of which may be required by the public in mooring boats both the act of 1813 and the ordinance of 1856 is mani- along either the Twenty-second or Twenty-third festly inconsistent with the idea that the owners who street wharves up to the line of the bulk-head, nor to should fill in the intermediate spaces were otherwise interfere with any other appropriate use of a whart, to acquire any right of wharfage, or even any title to such as a ferry landing, which the city and State may lots to the water's edge, so as to become riparian own authorize. ers at all. Under the ordinance of 1856, East street This case differs from all others which have been was to be an exterior street which would separate such cited in support of the injunction, in the fact that the proprietors from the water front, and under the act of complainant and those whom he represents have 1813 an exterior street, like West street or South street, neither any title to the slip or to the land in front of was also contemplated; but even had not such an ex- the bulk-head, nor any express grant of a right of terior street been designed to intervene under the or- wharfage, nor any evidence of any intent by the State didance of 1856 and the act of 1813, to cut off any ri- or oity to grant such a right. The case of Lansing v. parian ownership from those who might fill in the Smith, supra, as above observed, long since decided “intermediate spaces,” still the act of 1813 itself mani. that even if wharfage had been granted, subsequent festly confers on the city the right of wharfage on the. obstructions in front, necessary for the public convenwharves to be built out by it from the extended streets, ience, were no grounds for a claim of damages, so long and the control of wharfage rights. Subsequent acts as access, though impaired, still remained. In the have repeatedly confirmed this right. Langdon v. present case a basin of 145 feet long by the wharf will Mayor, 93 N. Y. 144, 145. The wharves form the slips ; remain free along the upper part of the bulk-head; and without the protection of the wharves in the rapid while the lower part, embracing more than oue-half tides of the East river, the bulk-heads themselves the complainant's frontage, will be completely open would be comparatively impracticable for use. The and unobstructed as before. slips are so narrow, being not much above 200 feet The papers before me do not show any legal rights wide, that the exercise of unrestricted rights of wharf- | in the complainant beyond this means of access still age by an owner along the line of the bulk-head would reserved to him by the proposed structures; and withmoreover be plainly incompatible with the exercise of out referring to the other points raised, the motion the same rights by the city upon its own wharves on should, upon the above ground, be denied. each side of the slips. The slips formed by the wharves are appurtenant to and for the use and benefit of the wharves, and of the city which owns them, RAILROAD — EJECTING PASSENGER – TICKET. and of the public which is entitled to the full use of them; not for the use or benefit of the bulk-head own- NEW YORK SUPREME COURT, GENERAL TERM. ers. Without the full, and it may be exclusive use of
OCTOBER, 1884. the slips, the full use of the wharves cannot be enjoyed. If an owner along the bulk-head line can law
HAYES V. NEW YORK CENTRAL R. Co. fully moor six, eight, ten, or even twenty canal boats at once along side the bulk-head, tier upon tier, as it If a passenger upon a railroad train mislays his ticket, and is said the complainant sometimes has done, he may
acting in good faith fails to find it, until after the conthus occupy the whole slip and exclude the public
ductor rings the bell for the purpose of stopping the from the wharves altogether, and the city from its
train and ejecting him; in an action against the carrier to rightful wharfage and use of the slip. On the other
recover damages for an unlawful ejection under such hand, the full enjoyment of the wharves by the city
circumstances, or its lessees for wharfage purposes may, if the publio Held, that the omission to find and surrender the ticket or needs require it, demand the use of the entire slip.
pay his fare before the bell rang is not equivalent to a reThore cannot exist therefore full riparian rights of
fusal to do so. wharfage in both parties at the same time. The act of Held further, that the passenger is entitled to a reasonable 1813 leaves no possible doubt which of the two-the
opportunity to find his ticket if he can, and in default to city which builds the wharves, or the owner who fills
pay his fare, and it is a question of fact for the jury to in intermediate spaces and thus becomes owner of the
determine whether or not such reasonable opportunity bulk-head lots-is intended to enjoy this right of
was allowed. Wharfage. All that the act of 1813. giver to the latter APPEAL from judgment centered upon a nonsuit street, as I have said, being contemplated by that act, an order denying a motion for a new trial on the minwhich would exclude him from the enjoyment of ri- | utes. The action is brought to recover damages for