392
FEDEIU,L REPOltTER t . vol.
40·
. ("Bntthe true answer to the position assumed, and which govemed the trial below ·. is that the water boundary on the lake is;to be deemed the true soutbern boundary of the lot at the date of the conveyance; as much so as North Water street WIIS its northern boundary. And the plaintiff is carried by,llis deed to it, not because of the alluvial dep()sit, if any, between the wa· ter-Hlla at the time of the,sun'ey and plat and the line at the date of the deed one of the calls gi ven in haVing passed as appurtenant to the lot" but the deed'requires that the side lines should be thus extended."
,. Iuother the supreme court seems have laid down this proposition, that where a water-line is the boundary of a named lot that line it shift$; and a deed describing reu1ains th£l ,boundary, no matter the lot by number or name conveys the land up to that shilting line t exactly 'it does up to the fixed side line. Supporting this doctrine are the cases of Lamb v.Rickets, 11 Ohio, 311; Giraud's Lessoov. Hughes, 1 Gill & J,.249j Kraut v. Crawford, 18 Iowa t 549j Glover v. Shields, 32 Barb. 374. And, independent of authority, any other rule would be attended with great, if not insurmountable, pra!Jtical difficulties. Supposing a chain of title to this very lot, (lot 4) in which, during a sucCession of years, there appears every two or three weeks a conveyance. The bdundaryon the river is gradually extending, but extending so slowly· that during the time of possession of any grantor the increase would be imperceptible. How, then, can the portion thus reserved be distinguished from the portion conveyed? It is true that between the time of possession of the patentee and the last grantee the change becomes evideRt; but is there any reason why all this increase should belong to the pMentee, arid not be distributed among the various holders in the chain of title? And how can it be distributed? This practical difficulty in the application of the rule announced in the former opinion has led to acarefull'e-examination of the question'in the light of the authorities,tindespecilllly of the case in 18 How., and I am compelled to hold that there was error in the former opinion. The true rule is that, so long as the doctrine of accretiOll applies, the water-line, if named as the boundaty, continues the boundary, no matter how much it may shift, and' thetdeed of the lot carries all to such line., The petition for a rehearingInnst be sustained, and the demurrer to the bill will be overruled.
to
as
'.Dlll
Buy.
LINE
v.
JACKSONVILLE,
T. & K.W. Ry. Co.l
, ' (Circuit Court, N',D. Florida. Aprl118,1889.)
.a. I.
'.
A bill seeking injunction against extortionate charges must allege ·that complab1ant has nO other means of carrying on his busines8 lilian those wherein he is 80 overcharged·. A bill allegtng disorimination in who are charged le.s than complainant.· . . . .
must aver that there are some partie. ,
'
·Reported by Peter J. Hamilton, Esq., of tbe Mobile bar.
DE BARY BAYA MERCBANTS'LINE t1. JAcKSONVILLE, T. '" Jt. W. RY. CO.
393
a. "
WHARVES-WHARl"AGE--COMPENSATION.
A reasonable compensation can be charged by the owner of a publio or private wharf for its use by other parties. Extortionate wharfage charges oan be prevented only by the state.
-
SAME-EXTORTIONATB CHARGES.
In Equity. Bill for injunction. The bill alleges, in substance, tliat the complainant owns and operates a line of steamers for the transportation of passengers and freight on the ,St. John's river, between Jacksonville and Palatka and intervening points on said river; that there is also another line of steamers on said river, engaged in a like business, called "The People's Line;" that the defendant railway company owns and operates a railroad with branches and connecting lines between the same points, and that inooDnection with its business it owns and maintains, and is the proprietor df,wharves at Palatka and other points between Jacksonville and Palatka, named in the bill; that the defendant charges the complainant wharfage on all freight delivered b)' complainant on said wharves for transshipment over defendant's and connecting lines to points further south and west; that such wharfage charge is an illegal and unjust discrimination against complainant, and' tends to create a monopoly for the transportationoffreight in the defendant to the detriment of commerce and the great damagee.f complainant; that it is extortionate, etc. It is prayed that defendant be enjoined ,from charging said wharfage, etc. H. Bi8b(!8, for complainant. TOULMIN, IJ.,(orally.) 1. There is nO'alJegationin the bill that complainant has no other means of carrying on its business and delivering its freight at Palatka and other points named in the bill for transshipment over defendant's railroad than over the alleged wharves of the defendant. 2. There is no allegation·in .the bilI that there are any other shippers of freight from said wharves over the defendant's railroad except "The People's of and the bill shows that" The People's Line" is charged wharfage. The bill does allege that said defendant railway company does not charge or coHect the' said so-called "wharfage" fI'OIb any otlieT'shippers except "The People's Line" of but" as I have said, fails to allege that there are any other shippers.. It is im, pHed in the bill, but is not distinctly averred, as it should be if it be a 'fact. The.re is a general averment of discrimination, but no statement of fact which shows any such discrimination. But it may be saidfthll,t these are but techQical obje<:tions, and that the bill could be amended to meet them. It would be as well, therefore, for me to express my views on the merits of the proposition contended for by the complainant, and to sUtte why I would be constrained to deny the injunctiOllprayed for, even iithe bill was nmended. 3.· Conceding that the defendant wharfage to theooinplalhant as complained of, question is, is it illegal or by law? "'fhere i8 DO principle that interposes any -to the re-
covery froIJl any vessel. landing.sta \ffiarf owned by an lndividu.al or by "amuriicipal orothei-"h'orporationajust compensation for the use of such property. It is a doctrine too well settled, and.a. eracticetoo common and too essential toithe interests of commerce and navigation to admit of a doubt, that for the use of such structures, erected by individual enterprise, and recognized everywhere as property, a reasonable' compensa·tionoon be eXBcted.!X Packet eo.;iv.Keokuk, 95 U. S. 80, 85; Gannon v. New Oi-Zeam, 20,Wall.577; Racket eo. v. Aileen·, 16 Fed. Rep. 895. The !ltatutes ,ofFlorida authorize railroad companies to build and main,tain wharves as incidental to their business, and for the use and oonveniehceof passengers and freighttrarisportedover!their roads. If the defendant hasbliiJt and maintained a,wharf at Palatka or any other point 'on the ,St.; ,John's river, and such:wharf is eitherlli.private or public wharf),:has a to use it without the payment of ,8, neasonablecompensation ,therefor,without the consent ·of the defend'imt?" Ithinknot..At'least I am notl'l30 convinced that the charge of 'lwharfage by the defendant is such'as ,to,authorize me'to grantthe extttafor by the comphtinant. This is ·ordinary process ofinjunction my view of the case on the allegations of the bill{and when they are :considelled in connection, with the affidavit filed on. behalf of the defendant,: which states that the defelldaIit does not colleot such. wharfage aoywhere excaptat PalatIa}, .and not there for its owliuse and benefit, but as agent for the owner ofthe.wharf who'resides·in New York,,it seems clear to me that I should not grant the injunction. Now, .if the wharfage charged is extortionate it is for the state so to regulate it as to prevent·exwFtion. P,wrlcet:Oo.v. Aiken.,8l1JPTa. 'l:he application lOran injuqction is denied. ·,;, "1..."
nINI1sKOPF' £
, : t:
(CIrcuit
co'f.lfft, D. Indiana. November 92, 1889.) " i
;L . $
1;1nlj.er LmUan,a a mortgage I1f stock pf Inerchandis!!lls valid, where the mortgagor is allowed to remain hI POSSeSSiOn and sell in the ordinary course of business,.appJ,ying.the proceeds of sales t<l!t}te'paym!!lntof the debtS seoured.' CUDl10RIl.', ,', .: "... ..' :
P088ESuW."
.
·
'ltoI'8,":"aodepted by tlhe mot'tgligee with a knowledge of suoh fraudulent intent, he 1 i · ; . W'rticipating. v,qiii "'s oreditors. '. . , .",. , .' . . , , ", A proVision, In a'chattel'mortgage, 'Irlving the mortgagee possession it the prop( 1 arty is assigned, .is enforcea'6I.e. ' ,. J' " ,j,'
.' ' A mortgage exeouted WIth "the .fraudulent intent to oheat, hinder, or lj.elay ored-
," ' ./ Action to replevin a stock of merchal1Qise, ,under the prQyijlious of a ,chf!.ttel mortgage. , , . . ., ,,; MorriJI,· Otf,rtis, for. . . Afa.rk E·. $Qrkrwr, J·. ()" ,l1arnard, for defendants.