It was not necessary for the plaintiffs to prove that the defendants were in the actual possession of the pier, to enable them to recover in this case. They were not entitled to the exclusive possession, by the terms of their lease, neither was it in the power of the corporation to grant it to them. A public pier is a part of the public highway, and must be devoted to the public use. The exclusive use of a public pier may be granted by the common council of the city of New York, to vessels engaged in commerce, or for commercial purposes (Davies' Laws, 705), but not to individuals for private purposes, to the exclusion of the public. It has been suggested, too, that this must be done by the city in its legislative capacity, and not by mere contract through its officers. (The Mayor v. Rice, 4 E.D. Smith, 609.) By various statutes of this State, authority is given to the owners of private wharves or piers, and to the corporation as to public piers, to collect wharfage and slippage from vessels that occupy them, the rates being fixed by law.
The accident in this case occurred on one of the public piers of the city of New York, for the use of which the city had the right to collect wharfage, being charged, of course, with the correlative duty of keeping it in repair. The legal effect of the instrument, given in evidence on the trial, was to subrogate the defendants to the place of the corporation, investing them with all the rights and subjecting them to all the duties of that body, as the owner of a public pier. This will appear plain when reference is made to the terms of the instrument. It sells and assigns the wharfage, which shall or may arise or accrue during the time covered by the lease, the lessees agreeing to keep the premises in repair. But it does not purport to give possession of the property; on the contrary, the lessees were required to covenant that "no demand should be made, nor any compensation received, for the occupation of the top or surface of such wharves or piers, for any purpose whatever."
The defendants in this case therefore had no other right in or to the use or possession of the property, not enjoyed by every other citizen in common with them, except the right *Page 259 to collect the wharfage to which their agreement entitled them, and the right to enter for the purpose of making repairs, in compliance with their covenant.
I have not overlooked the fact that the lessees covenanted "to surrender the piers at the expiration of the term, in as good condition as they were at the time they took possession thereof."
But these were not apt terms to express the real meaning of the parties. This language was used in connection with, and is a part of, the covenant to keep in repair, and was designed to express the condition which the property should be in, at the expiration of the term, rather than to define the tenure by which the defendants held it.
This is rendered the more apparent when we refer to another clause at the close of the instrument, where the lessees covenant "to surrender and yield up the rights and privileges demised." The naked right to collect wharfage (which was all that the defendants possessed), is incorporeal in its nature, and is incapable of any other or different possession than grows out of the right itself, and is incidental thereto, and which attached by force of the agreement which originated it, immediately on its execution and delivery. (East Haven v. Hemingway, 7 Comst. 186, 202.)
When, therefore, the plaintiffs were nonsuited on the ground that they had not shown that the defendants were in possession of the premises under their lease, the court overlooked the distinction between the bare right to collect wharfage, and the actual physical possession of the premises in connection with which the right was exercised.
If a turnpike company should sell and assign the tolls which it had a right to receive, the assignee agreeing to keep the road-bed in repair; in an action against such assignee for damages growing out of his neglect to perform his duty, it would not be pretended that it would be necessary to prove that he had entered into possession of the highway.
It was necessary, however, to prove that the defendants accepted the grant, in order to make them liable for the *Page 260 plaintiffs' loss; this being quite a different thing from the question of the possession of the premises. But that acceptance was proved by the introduction of the lease, for it was signed by the defendants themselves.
Even if that had not been the case, the acceptance would have been presumed, upon the principle that a man is presumed to accept that which is a benefit. (Camp v. Camp, 3 Conn. 291;Doe v. Marston, 3 Wend. 149; Bailey v. Culverwell, 8 Barn. Cres. 448; Townsend v. Tickell, 3 Barn. Ald. 31.) Having accepted the grant the defendants were bound to keep the premises in repair. The damage which the plaintiffs sustained was caused by their neglect, and they are liable for it. The city exercised due care on its part, when it required the defendants to keep the premises "in good condition and safe and proper repair, including especially the string-pieces," and this the defendants failed to do. It was the want of a safe and proper string-piece that caused the accident, and the defendants are clearly liable. (Barton v. Barclay, 5 Mo. P. 785; Mayor ofAlbany v. Coniff, 2 Cow. 165; Henley v. Mayor of Lyme, 3 Adolph. Ellis, 77; Brett v. Cumberland, Cro. Jac. 399, 521; 4 Cush. 277.)
The judgment should be reversed and a new trial ordered.
All the judges concurring, except HUNT and BOCKES, JJ., not voting,
Judgment reversed. *Page 261