Walker v. Erie , 64 Pa. Super. 525 ( 1916 )

Opinion by

Williams, J.,

The correct construction of contracts made in 1887 and 1846 between the predecessors in title of the parties to this controversy is the issue raised by this appeal. A bill in equity was filed to restrain the defendant from renting to others a wharf over which the plaintiff claimed the right of control and beneficial use, and to restrain the defendant from interfering with plaintiff’s use thereof. The court below in refusing the injunction held that the plaintiff did not have the exclusive right to the beneficial use of the wharf, and, also that a certain 30-foot space on the front of the plaintiff’s lot was included in the wharf affected by the decree. From that decree the present appeal has been taken.

The Borough of Erie, being the owner of land and water rights in a canal basin, sold lots along the water front to various people prior to 1837, and being desirous of promoting uniformity in the improvement of the basin and wharves entered into a contract with the lot owners whereby it was agreed, inter alia, that they could build wharves, from their lots into the canal basin for a distance of 200 feet, of which they, their heirs and assigns were to have “the free, absolute and entire possession, enjoyment, privilege and use forever......with the right of erecting storehouses and other buildings thereon” and a further right to use the whole length of the public pier as a roadway; that it would not rent the same to other individuals or permit the same to be obstructed so as to injure the convenient use of the samé; and that “the said owners of lots shall leave on the north end of his said wharf or platform in front of his storehouse, and adjoining the public pier, an open space of the same width of his lot and of the length of 30 feet from north to south, such open space being intended for the convenience of each of the respective owners of lots in the loading and unloading of goods, wares, merchandise and other articles and as a convenient place for the occasional depositing of bulky articles,......” The contract also provided that the lot owners could build out a second story of their warehouse over this 30-foot strip.

It appears from the findings of fact that the borough and city, at various times passed ordinances prescribing fees for wharfage and other charges. The lot owners also collected fees from various persons using the public wharf from 1860 up to 1909. In 1910 the city began enforcing the payment of the fees for wharfage which inured from merchandise (lumber, coal, ore, etc.) part of which was landed and stored in front of the plaintiff’s lots.

There are two questions involved: (1) as to whether the city, by collecting wharfage fees, had technically rented the public wharf to others, and (2) whether under the contract the thirty-foot strip designated therein for the use of the owners of each lot “was made into a driveway and left open for general use.”

The appellant’s contention that the charging of wharf-age was a renting of the public docks is based entirely upon his definition of renting. Wharfage charges have always been considered as differing from ordinary rent. It is a toll or duty for the pitching or lodging of goods upon a wharf, or pay for taking goods into a boat and from thence: Kusenberg v. Browne, 42 Pa. 173, 179. The parties intended to make a legal contract. To grant away the right of the public to control the public wharves would not have been effective: Pittsburgh v. Epping-Carpenter Co., 194 Pa. 318. The city had the right and duty to regulate the use of the wharf: Penny Pot Landing v. Philadelphia, 16 Pa. 79.

The finding of the court that the thirty-foot strip in front of each lot was a part of the public wharf is not justified by the record. The language of the contract shows that this strip was part of the premises conveyed to the lot owners. There is no reservation by the defendant of any right in it. Its purpose was to facilitate the transaction of the business of the lot owners. The éity could as well claim the right to let others use the warehouse room inside the buildings as to Claim that the space in front of the warehouses, part of the property of the lot owners, is public property. It is only fair to state that counsel for appellant admit that the attention of the learned court below was not called to this feature of the case.

The claim to the exclusive beneficial use of the public part of the wharf by the appellant was properly found against him, but there being no basis for the finding that the thirty-foot strip was a part of the public driveway, the decree should be modified to that extent.

The appeal is dismissed and the record remitted to the court below with directions to modify the decree in accordance with the views expressed in this opinion.