Williams, Ch. J.
Although the documents exhibited on the trial of the cause, are numerous, the dispute is within a very narrow7 compass. The jury, by their verdict, have negated the idea of any attempt of the defendants to evade the rights of the plaintiffs. The question, however, is really between the owners of the twro wharves; the Canal Company having indemnified the defendants.
What then, are the respective rights of these companies? That the Union wharf is a free, open, public highway, is not denied. But the plaintiffs claim, that they have the right to demand compensation for all goods brought by water, which are landed upon, or pass over their wharf; and upon all goods transported over or shipped from their wharf: and this seems not to be denied, on the part of the defendants ; but they claim, that as these goods were first landed upon or shipped from Basin wharf, and transported up or across the plaintiffs’ wharf only as a public highway, therefore no wharfage can be demanded.
[300]*300To determine this, we must look back to the origin of this r¡g.],it 0f wharfage. In the infant state of the town, it seems to have been an object of great solicitude, by the inhabitants, that •' & a wharf should be erected, by individuals, lo aid tiie commerce town_ After several ineffectual efforts, the proprietors, in 1732, voted not to allow any wharf to be erected within three rods of the East side of the proposed wharf, nor within four rods of the West side ; thus holding out to those, who would embark in this enterprise, that if this wharf should become a public highway, those who, by means of it, imported or exported their goods, should not be allowed the facilities of another wharf, by which they could avoid a reasonable compensation for the expenses incurred in this then novel, but important undertaking. Soon after, and as we may fairly presume, in consequence of this vote, the original wharf was erected. Under this grant, though the wharf became a public highway, yet those who used it, to import or export goods, always paid a compensation therefor, under the denomination of wharfage; and it has not been denied but that, if goods imported were landed at a pier, and then transported in a boat or on the ice, to this wharf, and landed there, or transported over it, they would have been subject to wharfage: and if another wharf had been built four rods distant, and goods imported were landed thereon, and then brought on to this wharf, upon the same principle, (hey must have been subject to wharfage. If such a wharf had been extended to the main land, the owners of this wharf could not complain, although it deprived them of much of their profits; because they must have known originally, that they were liable to this competition, and they were willing to risk it. But as this wharf was erected for the accommodation of the importers and shippers of goods, it is but reasonable that those who used it for that purpose, should make compensation therefor; and although the goods imported or shipped might first rest upon a pier or upon the ice, or even another wharf, yet if they were placed upon this wharf for the purpose of reaching their place of destination, we think there is nothing in the fact that they were first placed upon another wharf, more than upon a pier or the ice, which would exempt them from wharfage. They obtained the very accommodation, which this wharf was designed to give — a landing upon a structure connected with the main land. And when we con-[301]*301sidev, that by the grant, no wharf was to be erected within four rods of this, we think that goods brought from such a wharf to this, to be transported to their place of destination, may be fairly said to be landed upon this wharf, and so, in the strictest sense, subject to wharfage. Had there been no connexion between this wharf and the Canal wharf, these goods must have been brought in boats to the wharf of the plaintiffs, in which case, they would have been literally landed on their wharf, and would certainly have been subject to wharfage.
How then, is the case altered, by the arrangement made between the corporations? The Canal Company had no right to unite their wharf to the Union wharf, or to build within three rods of it, without the consent of the plaintiffs. An arrangement, however, was made; and it is immaterial at whose request; and that consent wras given ; but upon certain terms and conditions. One of these conditions was, that the side of the Union wharf enclosed within the basin, should be free from wharfage for canal boats, and all articles transported either up or down in them ; and the Union Wharf Company retained to themselves all powers and rights not especially granted to the Canal Company.
The first-mentioned provision clearly show's what was intended to be granted, as it regards wharfage — an exemption from wharfage on goods brought down or carried up the canal and canal boats ; not how'ever upon all, but such only as should come or send their goods within the basin. How frivolous would this arrangement have been, if the claim of the defendants is admitted ! How idle to provide, that goods coming down the canal might be free from wharfage, if all goods from any place, were to be free from wharfage !
If it should be said, that this exemption applies only to goods first landed upon Union wharf from the canal boats, it would deduct very little from the weight of the argument; for a3 these wharves were to be connected, whether the goods were first landed upon one or the other, would be a matter of trifling consequence in such an arrangement.
But further, the Union Wharf Company, after the exemption, which is the only thing said about wharfage, expressly reserve all rights and privileges not expressly granted; and as they had granted no exemption but the one before stated, all other rights to wharfage which they before had, remain [302]*302with that corporation. Had not this junction of the two wfaarveg been made, we have seen, that the plaintiffs would ^ave keen enl¡tled to wharfage, upon all goods landed, directly or indirectly, from a vessel upon their wharf, for the purpose of ar|-jvjng a[ their final destination, by means thereof; or upon goods shipped therefrom, in a similar manner. If goods imported have once been transported from a pier or wharf to the main land, then they may be no mere liable to wharfage, than any other goods brought from the. country, to the stores on the wharf; but goods brought by water, and landed on or transported over the plaintiffs’ wharf, for the place of their destination, cannot free themselves from wharfage, by resting upon a pier, or the ice, or even another wharf. They cannot be said to be landed, in the one case, more than in the other. The Canal Company, when they took this grant from the Union Wharf Company, must have understood, that nothing was intended to be granted, but what was expressly granted ; and they then received a grant of the flats, upon which their wharf and basin is founded, from the proprietors of the town, upon the express stipulation, that this agreement between the Union Wharf Company and the Canal Company be ratified. They therefore agreed to build their wharf under these conditions and stipulations. But by the claim now made, tlie Union Wharf Company are not to retain the power and enjoy the privileges they before did. The Canal Company
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Williams, Ch. J.
Although the documents exhibited on the trial of the cause, are numerous, the dispute is within a very narrow7 compass. The jury, by their verdict, have negated the idea of any attempt of the defendants to evade the rights of the plaintiffs. The question, however, is really between the owners of the twro wharves; the Canal Company having indemnified the defendants.
What then, are the respective rights of these companies? That the Union wharf is a free, open, public highway, is not denied. But the plaintiffs claim, that they have the right to demand compensation for all goods brought by water, which are landed upon, or pass over their wharf; and upon all goods transported over or shipped from their wharf: and this seems not to be denied, on the part of the defendants ; but they claim, that as these goods were first landed upon or shipped from Basin wharf, and transported up or across the plaintiffs’ wharf only as a public highway, therefore no wharfage can be demanded.
[300]*300To determine this, we must look back to the origin of this r¡g.],it 0f wharfage. In the infant state of the town, it seems to have been an object of great solicitude, by the inhabitants, that •' & a wharf should be erected, by individuals, lo aid tiie commerce town_ After several ineffectual efforts, the proprietors, in 1732, voted not to allow any wharf to be erected within three rods of the East side of the proposed wharf, nor within four rods of the West side ; thus holding out to those, who would embark in this enterprise, that if this wharf should become a public highway, those who, by means of it, imported or exported their goods, should not be allowed the facilities of another wharf, by which they could avoid a reasonable compensation for the expenses incurred in this then novel, but important undertaking. Soon after, and as we may fairly presume, in consequence of this vote, the original wharf was erected. Under this grant, though the wharf became a public highway, yet those who used it, to import or export goods, always paid a compensation therefor, under the denomination of wharfage; and it has not been denied but that, if goods imported were landed at a pier, and then transported in a boat or on the ice, to this wharf, and landed there, or transported over it, they would have been subject to wharfage: and if another wharf had been built four rods distant, and goods imported were landed thereon, and then brought on to this wharf, upon the same principle, (hey must have been subject to wharfage. If such a wharf had been extended to the main land, the owners of this wharf could not complain, although it deprived them of much of their profits; because they must have known originally, that they were liable to this competition, and they were willing to risk it. But as this wharf was erected for the accommodation of the importers and shippers of goods, it is but reasonable that those who used it for that purpose, should make compensation therefor; and although the goods imported or shipped might first rest upon a pier or upon the ice, or even another wharf, yet if they were placed upon this wharf for the purpose of reaching their place of destination, we think there is nothing in the fact that they were first placed upon another wharf, more than upon a pier or the ice, which would exempt them from wharfage. They obtained the very accommodation, which this wharf was designed to give — a landing upon a structure connected with the main land. And when we con-[301]*301sidev, that by the grant, no wharf was to be erected within four rods of this, we think that goods brought from such a wharf to this, to be transported to their place of destination, may be fairly said to be landed upon this wharf, and so, in the strictest sense, subject to wharfage. Had there been no connexion between this wharf and the Canal wharf, these goods must have been brought in boats to the wharf of the plaintiffs, in which case, they would have been literally landed on their wharf, and would certainly have been subject to wharfage.
How then, is the case altered, by the arrangement made between the corporations? The Canal Company had no right to unite their wharf to the Union wharf, or to build within three rods of it, without the consent of the plaintiffs. An arrangement, however, was made; and it is immaterial at whose request; and that consent wras given ; but upon certain terms and conditions. One of these conditions was, that the side of the Union wharf enclosed within the basin, should be free from wharfage for canal boats, and all articles transported either up or down in them ; and the Union Wharf Company retained to themselves all powers and rights not especially granted to the Canal Company.
The first-mentioned provision clearly show's what was intended to be granted, as it regards wharfage — an exemption from wharfage on goods brought down or carried up the canal and canal boats ; not how'ever upon all, but such only as should come or send their goods within the basin. How frivolous would this arrangement have been, if the claim of the defendants is admitted ! How idle to provide, that goods coming down the canal might be free from wharfage, if all goods from any place, were to be free from wharfage !
If it should be said, that this exemption applies only to goods first landed upon Union wharf from the canal boats, it would deduct very little from the weight of the argument; for a3 these wharves were to be connected, whether the goods were first landed upon one or the other, would be a matter of trifling consequence in such an arrangement.
But further, the Union Wharf Company, after the exemption, which is the only thing said about wharfage, expressly reserve all rights and privileges not expressly granted; and as they had granted no exemption but the one before stated, all other rights to wharfage which they before had, remain [302]*302with that corporation. Had not this junction of the two wfaarveg been made, we have seen, that the plaintiffs would ^ave keen enl¡tled to wharfage, upon all goods landed, directly or indirectly, from a vessel upon their wharf, for the purpose of ar|-jvjng a[ their final destination, by means thereof; or upon goods shipped therefrom, in a similar manner. If goods imported have once been transported from a pier or wharf to the main land, then they may be no mere liable to wharfage, than any other goods brought from the. country, to the stores on the wharf; but goods brought by water, and landed on or transported over the plaintiffs’ wharf, for the place of their destination, cannot free themselves from wharfage, by resting upon a pier, or the ice, or even another wharf. They cannot be said to be landed, in the one case, more than in the other. The Canal Company, when they took this grant from the Union Wharf Company, must have understood, that nothing was intended to be granted, but what was expressly granted ; and they then received a grant of the flats, upon which their wharf and basin is founded, from the proprietors of the town, upon the express stipulation, that this agreement between the Union Wharf Company and the Canal Company be ratified. They therefore agreed to build their wharf under these conditions and stipulations. But by the claim now made, tlie Union Wharf Company are not to retain the power and enjoy the privileges they before did. The Canal Company are to take from them all the business, which the space their wharf occupies will permit, and at the same time, subject the wharf of the plaintiffs to a great share of the damage incident to such business. Such a construction of this contract, the court cannot accede to. We consider it contrary to good faith ; and contrary to the spirit of the contract and the intent of the parties, who, at that time, seemed desirous to guard the rights of the plaintiffs with great care. As between these corporations, therefore, every principle of law, as well as of justice, is in favour of the plaintiffs ; and this suit is in fact, though not in form, a suit between these companies ; for the defendants are indemnified by the Canal Company.
It is true, however, that the defendants’ indemnification may fail; and they must have a right to be heard in their own de-fence. How then do they stand ? The plaintiffs would have had a right to exact wharfage of them upon these goods so [303]*303placed upon their wharf, before the erection of the canal wharf. The defendants must, then, show how that right has been lost or varied ; and for this purpose, they must rely upon the rights of the Canal Company ; and if this company have no rights, as against the Union Wharf Company, to intercept their claim of wharfage, we do not see how the defendants can resist the claim. That they have paid their wharfage to the Canal Company, may evince what has been found by the jury, that there was no design to avoid wharfage ; but it will not show, that the plaintiffs were not entitled to it. And if the plaintiffs would have been entitled to wharfage, aside from the intervention of the canal wharf, the defendants must show, that by means of that wharf, this right was lost. And when the very instrument under which the wharf was erected, shows, that the plaintiffs’ right of wharfage was retained, it is not easy to see how the defendants can shelter themselves under it, more than the Canal Company.
To a majority of the court, then, it appears, that the plaintiffs, upon the facts admitted and proved in this case, are entitled to wharfage; and of course, there must be a new trial.
In this opinion Btssell, Huntington and Waite, Js. concurred.
Church, J. dissented.
New trial to be granted.