O'Conley v. President of Natchez

Per Curiam. This action was brought to recover the amount of wharfage received by the city authorities, whilst in possession of plaintiff’s wharf, for which he held a lease. Besides a spe [46] ■cial count, the declaration contains counts for use and occupation, and for money had and received. The jury having found for the defendants, (the president and selectmen,) the plaintiff moved for a new trial, which was overruled, whereupon he set out the evidence and took his bill of exceptions. No question of law having arisen on the trial, we are only called upon to decide upon the propriety of the verdict according to the pleading and evidence. The plaintiff proved his ownership of the wharf—the collection of wharfage by defendants, and that they derived great profit from it, by tolls or charges, exacted of boats for the use of the landing. Some of the witnesses say that the defendants must have received $800 or $900—others say more. This testimony was sufficient to entitle the plaintiff to a verdict, unless there be some legal impediment to his right of recovery. For the defendants, it is insisted that the action was not well brought, inasmuch as there was an adverse possession—that the relation of landlord and tenant was not established. On the former argument of the cause, we thought this objection well taken, but a re-argument was granted, and a second examination of the evidence induces the belief that we were mistaken. There was no dispute about the right of soil. The defendants filed several pleas asserting long occupancy, and dedication of the wharf to public uses; but these pleas seem to have been filed at a subsequent term, without leave of court, and were properly disregarded; and there was no proof tending to show any right in them, or any possession, farther than such possession as they might have taken for the purpose of collecting the wharfage under a city regulation. The plaintiff’s right was fully established, and there is nothing which shows that he was turned out, or yielded possession of the landing. On this view of the subject, the defendants were mere intruders or trespassers in collecting that which belonged to another. In such cases, the action for money had and received will lie. Even trover or trespass may be waived if the wrong-doer has converted the property into money; and this is the rule also when profits have been received by injuries done to real property. See 4 Phillips’s [47] Evidence (Cowen & Hill’s edition,) 220,' note 347, and authorities there cited. The special count and the count for use and occupation, without proof to sustain them, cannot deprive the plaintiff of his right to recover under the money count. But it is also said, in argument, that the wharfage exacted of steamboats and other vessels, was a tonnage duty, and that the act authorizing it, is repugnant to the 10th section of the 1st article of the federal constitution. Tonnage duty, within the meaning of the constitution, is a tax or charge imposed on vessels engaged in importing merchandise into the ports of the United States. It is a commercial regulation exclusively, being a duty on the vessel, levied for the privilege of entering our ports as carriers. The wharfage here claimed is a mere charge made by the owner of the soil for the use of a portion of .it, which charge he has a right to make. The price, perhaps, may be subject to municipal regulation, but the right is undoubted. The act of 1825, referred to,' does not profess to divest the right of property in the banks of the river, but it merely authorizes the president and selectmen to establish the rates of wharfage, and to collect them through the agency of a harbor-master, and it is therefore not in conflict with the constitution. According to these views, the plaintiff was entitled to recover, and a new trial must be granted.