City of Demopolis v. Webb

McCLELLAN, J.

While concurring in the conclusions reached in the foregoing opinion, I desire to add the following, as expressing my reasons for holding the demurrer well taken to those allegations of the bill which seeks to have the right of the public in respect to the river declared and enforced.

The bill alleges generally, that the whole of Arch street to the water’s edge was dedicated to the public in 1819. Had the averments on this subject stopped here, they would, in my opinion, have been sufficient to show that the public *672had the absolute right to the free and unobstructed use of the street, not only in passing up and down it, and from other streets on to it, and from it on other streets, but also in passing from this street on to the river, and vice versa; and this right of user pertained as well to the transportation of property as the passage of persons. The collection of tolls or wharfage is wholly inconsistent with this right of user, and incompatible with the dedication to the water line. The claim of the defendants of the right to construct, maintain and charge for the use of a wharf at the lower landing, or to collect fees for the passage of persons or property into or off from the river at that point, can be sustained only by proof of a reservation of these rights out' of the original dedication, and their connection with them as successors of the original proprietors. As a matter of pleading, however, construing the allegations of the bill most strongly against the complainant, subsequent paragraphs qualify the general averment of dedication to the water’s edge, and state facts which, either of themselves, or in their relation to the other facts, admit of the conclusion that there was a reservation by the original dedicators of the wharfing or landing privilege, and the right to charge tolls, &c., and that the defendants have succeeded to these rights. The bill fails to negative, with sufficient certainty, the existence of this right thus acquired in the defendants; and the demurrer on this ground was properly sustained.