Nolte v. Hudson Nav. Co.

HAND, Circuit Judge (after stating the facts as above). The ease is barren of any evidence of the company’s occupation before 1898, except for the report of the engineer. That, however, seems to us evidence of the truth of what it declares, though, of course, it was not a conclusive interpretation of the contract. It was the report of an official, made in the course of his duties, of matters which came under his personal knowledge, and which he was charged with the duty of ascertaining and reporting. Ellicott v. Pearl, 10 Pet. 413, 440, 441, 9 L. Ed. 475; Buckley v. U. S., 4 How. 251, 258, 11 L. Ed. 961; Evanston v. Gunn, 99 U. S. 660, 665-667, 25 L. Ed. 306; White v. U. S., 164 U. S. 100, 102-104, 17 S. Ct. 38, 41 L. Ed. 365; Ches. & Del. Canal Co. v. U. S. (C. C. A. 3) 240 F. 903, 153 C. C. A. 589; Wigmore, §§ 1630-1633. We may therefore start as a datum with the fact that in 1898 the company was in occupation of a shed of the same size and similarly situated, as respects the old pier, as that which it built in 1899, and which it has maintained ever since. It had occupied this old shed, either under some valid grant from the city, or by gratuitous license, which we may assume would have been no bar to an action for use and occupation, and which, indeed, may at the time have been an unlawful encroachment upon the city street. Although the city has the burden of proof, we shall for argument take as proved the second alternative in what we have to say. The meaning of the contract of 1898 seems to us that, whatever rights the company had under its old occupation, it was to enjoy under the new. True, there is no apt language to include the maintenance of a shed upon the land inside the bulkhead; but there is equally none to exclude it. “Emoluments” “appurtenant” to the wharf is indeed a vague phrase, and was used because it was; the exact extent of what was granted was not known, and was not meant to be set out in detail. However, the habendum refers the future enjoyment to the earlier occupation, and by so doing measures the one by the other. That was a fair bargain, for, although the company got a little larger pier, it was compelled to do much expensive work, and would normally expect to reassume the same occupation that it had before it was disturbed. At any rate, this appears to us to be a possible and likely meaning to attach to language, purposely indefinite. However, we need not say that, if the words stood bare, as they did in 1898, we should feel obliged to construe them in this way. At least, when parties choose such equivocal language, they must be content with the interpretation which they put upon it immediately thereafter, and to which they continuously adhered for nearly 25 years. While the new pier and bulkhead were building, the company asserted its right under the contract to a new shed located relatively to the new bulkhead as the old shed was located relatively to the old bulkhead, and the city assented, not as the grant of a new right, but as something included within the old. Nobody read any other meaning into the words until this claim was filed, and everybody concerned acted on the assumption that the first interpretation had been right. The canon of contemporaneous and subsequent construction of a contract applies,' not only to individuals, but also to municipalities, District of Columbia v. Gallaher, 124 U. S. 505, 8 S. Ct. 585, 31 L. Ed. 526; to territories, Lowrey v. Hawaii, 206 U. S. 206, 27 S. Ct. 622, 51 L. Ed. 1026; and even to the United States, Simpson v. U. S., 199 U. S. 397, 26 S. Ct. 54, 50 L. Ed. 245. The rule is no different in New York. City of New York v. N. Y. City Railways Co., 193 N. Y. 543, 548, 86 N. E. 565. Hence we conclude that the contract meant to give the company, for the maintenance of the new shed, whatever rights it had had to maintain the old shed. What these were we do not mean to suggest; for aught we say here, the city is free at any time to revoke the license, if it be no more, and re-enter. Moreover, it is consistent with the proof that the old occupation was merely by gratuitous, and perhaps unlawful, license, which was invalid as a bar to the city’s claim for use and occupation, even while it endured. Indeed, the chief embarrassment we feel in affirming the decree results from this circumstance, because it may be plausibly argued that the new license was no better than the old, and if a claim arose notwithstanding the one, it must arise in spite of the other. What change did the contract effect, even though as we have held, it was intended to grant similar rights to those that had existed before? We think that this contention ignores the fact that the new license was at least part oi a contract, which, being for valid consideration, the board of docks had authority to [185] make. City of New York v. D., L. & W. R. R. Co., 237 N. Y. 398, 143 N. E. 234. Granting that the old license did not bar an aetion for use and occupation, the city has at least not shown that any claim for it had ever been made, and, as the city has the burden of proof, we cannot assume that any ever was made. If not, the situation was one in which the city by competent authority declared that the company should in the future enjoy the occupation without paying for it. The earlier user, by reference made the measure of the new license, might become the content of a valid promise, being given for an adequate consideration. It was a valid bar, while outstanding, to any claim for use and occupation. All this is quite consistent with the power of the city to revoke the license at its pleasure and re-enter, since the maintenance of the old shed was no proof of any lawful right to maintain it. We think that the special master was right, except as to his finding that the company had a vested right in the maintenance of the shed. That was unnecessary to the determination of the case, and is disapproved. In all other respects the decree is affirmed.