Lewis v. People

• Decision Date: 23 November 1872
• Citation: 26 Mich. 221
• Court: Michigan Supreme Court
• Parties: Lewis W. Horn v. The People

26 Mich. 221

Lewis W. Horn v. The People

Supreme Court of Michigan

November 23, 1872

Heard October 26, 1872

Certiorari to the recorder's court of Detroit.

Conviction quashed, with costs.

Moore & Griffin, for plaintiff in certiorari.

F. G Russell and D. C. Holbrook, for the People.

OPINION

Campbell, J.:

Horn was convicted in the recorder's court of Detroit, of violating the city ordinances by refusing to obey the directions of the harbor master, to remove his steamboat fro the dock at the foot of Woodward avenue, leased by the city to Geo. II. Brady and others.

One objection raised is, that he had a right to keep his vessel there because it was a public and not a private place, and a highway. This idea is based on the assumption that a highway leading to a navigable stream, must necessarily continue over all wharves and other erections that may be placed beyond the terminus at the shore in its natural state. As the vehicles used on land and water cannot be used on both, it is not very easy to see the force of this suggestion. Wharves are absolutely necessary for all ordinary navigation, and their necessary uses would generally be incompatible with the purposes of a land highway, and might be nuisances to any such way. But, however this may be, all land highways are such solely by municipal law, which may establish, regulate, and destroy them at all times. All public easements are subject to extinguishment, or control, by legislative authority. If there are private rights also, they cannot require ways to be perpetuated as public, whether left open for private purposes or not. There can be no highway which is not made so by common or statute law, or which is not under public custody; and, unless coming within some constitutional protection, there is none that can exist where the law has provided that it shall not exist: People v. Supervisors of Ingham, 20 Mich. 95; People v. Jones, 6 Mich. 176.

At the earliest city organization of Detroit, in 1815, the city was authorized to erect, repair and regulate public wharves: L. 1820, p. 175. The charter of 1827 continued in the new corporation, the ferries, wharves and landing places of the old one, with power to regulate the building of wharves and docks by private persons, and in some cases to require filling up and embankments, and to do the work, and sell the grounds and wharves, of the defaulters not paying the assessments: Laws 1827, p. 573, §§ 11, 27, 42. In 1824, to carry out certain desired improvements for the city in its neighborhood, a wharf was authorized to be built by a private person, in continuation of Randolph street, with the usual privileges of private owners, subject to some special conditions: L. 1827, p. 594. This was done to carry out an arrangement on behalf of the city, which received an equivalent. The city was expressly excluded from any rights of wharfing on the property brought into its limits from the adjacent private estates, as well as from interfering anywhere with private riparian ownership: L. 1827, p. 580, §§ 22, 49.

The present charter authorizes the city to erect, repair and regulate public wharves and docks at the ends of streets, and on the property of the corporation, and to fix a line beyond which private docks shall not extend; and to lease the wharves and wharfing privileges at the ends of streets on the Detroit river, on such terms as they shall think fit, for not more than three years, subject to a free passage for persons with their baggage. This legislation indicates a clear intent on the part of the legislature not to treat these terminal wharves as highways, even when they belong to the city, but to leave their regulation within the city control, as far as it could be done without impairing private rights. How far the city could originally have set up proprietary rights in these termini, as against other claimants, is not important; as long possession would cure any defects, if existing, and the dock referred to in the record is in the actual possession of the lessees of the city: Linthicum v. Ray, 76 U.S. 241, 9 Wall. 241, 19 L.Ed. 657. But in no case could the respondent be any better off by disputing it; the title is proprietary in its nature, and not a public easement: City of Boston v. Lecraw, 58 U.S. 426, 17 HOW 426, 15 L.Ed. 118.

There is no instance in which the term "public wharf" has been used in our legislation to indicate anything analogous to a dedication to any public use, like that of highways. Such a public right is unknown to the common law. Wharfage involves exclusive use, for longer or shorter periods, by each vessel, depending on the nature of its business, and the extent of its cargo. All that is meant in the charter by a public wharf is a wharf belonging to the city, and to be used like any other wharf property. The term is applied as well to wharves on city property away from streets, as to wharves at the end of streets. The city is not compelled to make them, and they have never been chargeable, like pavements, to adjacent property. They are built for purposes of revenue, and have always been used on that theory, as the law expressly allows them to be used. They are not open to indiscriminate...