delivered the opinion of the court:
This action was brought by the city of Covington against Robert Kennedy, to recover the sum of seven hundred and thirty dollars, for the use of the plaintiff’s wharf by the defendant to land his ferryboats, from the 1st day of December, 1850, until the 1st day of December, 1851.
The defendant resisted the plaintiff’s right to recover wharfage against him, on the ground that the heirs of Samuel Kennedy, deceased, are the owners of a ferry across the Ohio river from Covington, and have a right to land their boats at any point within the city limits as originally laid out, without paying wharfage to the city. The court below decided against the right claimed by the defendant, and he has appealed to this court from a judgment which the plaintiff recovered against him for the amount demanded in the petition.
In the case of Kennedy's heirs vs. Covington, 8 Dana, 50, the right of the ferry franchise at Covington *584was decided to be in Kennedy’s heirs; it was also decided that the city of Covington extended to the Ohio river, and that the title of the strip of land next to the river, was held in trust, not only for the use of the city, but also for the use of the owners of the ferry franchise. The extent of the rights of the respective parties is therefore the principal question that arises in this case.
Every individual must so use his own property as not to interfere with the rights oí others. Where two have the right to the use of the same property, and outlay is necessary to the perfect enjoyment of right by one party, and is also promotive of the enjoyment by the other,the expense of the outlay should be prop ortionally borne by each.The right of the city to construct wharves on the strip of ground referred to, or to use it in any mode calculated to promote the prosperity of the city, or the convenience of its inhabitants, not inconsistent with the exercise of the ferry franchise belonging to Kennedy’s heirs, is not controverted. But it is contended, that as the owners of the ferry have a right to land at the city wharf, as an incident to their ferry franchise, that they cannot be required to pay wharf-age for the exercise of this right.
It is a well settled principle of law, that every owner of property shall use and exercise the rights incident thereto, so as not to interfere with the rights and privileges which belong to other persons. Now, in this case, both parties have rights which attach to the same property; one of them the right to use it as a ferry landing, the other to use it for the benefit of the city, and the convenience of its inhabitants.
To the full enjoyment of the right which belongs to the city, the grading and paving of the landing, and the construction of the wharves, is indispensably necessary. For the accomplishment of this object, a considerable expenditure of money is required, and by its accomplishment, the interest of both parties is evidently promoted. The construction of wharves increases the business, the prosperity, and the growth of the city, and thereby contributes to the enhancement of the value of the ferry privilege, by a corresponding increase of its business.
As, therefore, the city is compelled to incur a large expenditure, to enable her to have the full enjoy*585ment of bei* rights in the common property, and as it operaest to the advantage of both parties, every principle of justice and equity requires, that the owners of the ferry, if they use the improvement, should be made liable, in some form or other, to contribute their rateable proportion to the cost of its construction. This liability cannot, however, authorize the city to subject them to the payment of regular wharfage. Such a charge might materially diminish the 'value of the ferry franchise, inasmuch as the city having the power by ordinance, to establish the rates of wharfage, might make them so exorbitantly high, as to require for their payment nearly all the profits of the ferry. Such a right on the part of the city would be wholly inconsistent with the rights which appertain to the ferry franchise. The interest of the city, in sustaining and encouraging the trade and business of the place, operates as a check upon her, in fixing the rate of charges to which boats engaged in commerce shall be subjected. And such boats can navigate the river, and follow their usual employment, without stopping at the plaintiff’s wharf at all, if she should attempt to make them liable for unreasonable charges for doing so. But she is under no such check, in determining the rates of charge, to which the proprietors of the ferry shall be subjected; nor have they the option to abstain from the use of the wharf, but are compelled to use it, and have a right to do so, in carrying on the business of their ferry.
We have had some difficulty in fixing the criterion by which the extent of the liability of the owners of the ferry, for contribution, for improving the wharf, shall be ascertained and determined. We have, however, concluded that they ought to pay one half the cost of constructing so much of the wharf at the foot of Scott street, as is necessary for the convenient landing of their boats, and the passengers therein, and which they have been using for that purpose. The expense incurred in grading *586and paving from the end of Scott street, across First or Front street, to the water’s edge, of so much thereof as may be deemed necessary for the use of the ferry, must be taken into the estimate. The owners of the ferry will also be liable to the city for one half the cost of such repairs, as may from time to time, become necessary on that part of the wharf, and may be made by the city.
The judgment against the defendant will have to be reversed; and as Ihe plaintiff in her petition, has only claimed wharfage, she will be compelled, to enable her to claim the contribution to which she is entitled, to amend her petition and set out a different cause of action.
Wherefore, the judgment is reversed and cause remanded, with directions that the plaintiff be permitted to file an amended petition, if she wishes to do so, and for further proceedings consistent with this opinion.