Thompson v. City of New York — 5 N.Y. Super. Ct. 487

Majority

p. 487

Thompson and others v. The City of New York and others.

Headnote

ünder the second section ef the act of April, 1806, providing that in all cases where ■“ the mayor, aldermen, .and commonalty of the city of New York shall think it for the public good to enlarge any of the slips in the said city, they shall be at liberty and have full power so to do, and upon paying one third of the expenses of „ building the necessary piers and bridges, shall be entitled not only to the slipage of that side of the said piers which shall be adjacent to such slips respectively, but also io one half of the wharfage to arise from the outermost end of the said piers,” the corporation has the power to erect piers, and to extend them into the river, for the purpose of enlarging the slips.

The word " slip” is peculiar to this state, in its application to structures or places for ' She accommodation of vessels lying in port.

p. 488

The addition of a pier to one side of a slip, will operate as an enlargement of the slip; even though no corresponding pier is extended from the other side of the same slip.

Where a bill was filed by the owners of certain piers in the city of New York, against the corporation of the city and others, claiming that the plaintiffs were entitled to the entire wharfage derived from the outermost ends of those piers; that they had enjoyed such wharfage from the first sinking of the piers in the year 1809 ; that upon the extending of the piers in 1839, they assented to the extension, on the condition that their exclusive rights to such wharfage should be reserved to them; and the defendants insisted that they and the plaintiffs were^ tenants in common, that there had been no actual ouster, nor acquiescence by them in the exclusive enjoyment of the right by the plaintiffs, and that there was no suEcient proof to warrant the court in presuming a grant; Held, that it was the province of a jury to determine whether or not a grant would be presumed, and that the question to be submitted to the jury would be, whether the plaintiffs, and those under whom they claimed, had acquired, by prescription, an exclusive right to the whole of the wharfage at the outermost end of the piers, previous to their assent to the extension in 1839.

(Before Duer, Mason, and Campbell, J.J.)

Jan. 23, 24,25, 26 ;

April 1, 1850.

This was a suit originally commenced in the late court ot chancery. The plaintiffs, Samuel M. Thompson, Theodore Polhemus, and Robert J. Murray, in their bill of complaint alleged that they, with other persons as thereinafter mentioned, were interested in and legally entitled to a part of the wharfage accruing from two certain piers, known as numbers 19 and 20, respectively, on the East river, in the city of Hew York; pier Ho. 19 being on the easterly side of the slip at the foot of Maiden lane, formerly called Fly Market slip, and pier Ho. 20, being on the westerly side of Burling slip; and they claimed that their right extended to and embraced the wharfage accruing from the easterly side of pier Ho. 19, and from the westerly side of pier Ho. 20, and also from the whole of the outermost ends of both the piers. That previous to the building of the two piers, they and their co-proprietors, or those persons from whom they derived their rights, were entitled to all the wharfage accruing on South street between Maiden lane and Burling slip, and that such right was derived from grants theretofore made by the mayor, aider-men, and commonalty of the city of Hew York, for the lots and promises lying between Maiden lane and Burling slip, and fronting on the then exterior line of the city on the East river. That in 1809, while the proprietors, who then held the rights, now

p. 489

represented by complainants, were in the enjoyment of the whole of the wharfage accruing on South street, between Maiden lane and Burling slip, the two piers Nos. 19 and 20, were built, running out from South street into the East river, by order of the mayor, aldermen, and commonalty, and that those proprietors contributed and paid two thirds of the expense of building those piers, and the city paid the other one third of such expense. That for upwards of thirty years from the time when piers Nos. 19 and 20 were so built, those proprietors did collect, receive, and enjoy, without let, hindrance, or interruption of any kind from the mayor, aldermen, and commonalty of the city, or from any other party, all the wharfage accruing not only on the easterly side of pier 19, and on the westerly side of pier 20, but also on the whole of the outermost ends of both of the piers; and that the mayor, aldermen, and commonalty, or their agents, during that period, collected and received the wharfage accruing on the westerly side of pier No. 19, and on the easterly side of pier No. 20. And the plaintiffs claimed and insisted that by such long and undisturbed receipt and enjoyment of the wharf-age by the proprietors, and the acquiescence of the mayor, aider-men, and commonalty therein, the right of the proprietors to the whole of the wharfage accruing from the outermost ends of the two piers, became established. The bill further alleged, that in or about the month of April, 1839, a resolution was passed by the common council of the city, directing that the pier on the westerly side of Burling slip, known as No. 20, should be extended ninety feet into the East river, under the direction of the street commissioner. That notice of the resolution having been published by the street commissioner, and the proprietors having been required by the notice to signify their assent to the rebuilding and extending the pier, and to contribute towards the expense thereof; a paper was drawn up by or under the direction of the street commissioner, and signed by the proprietors, or the majority of them for themselves and then- co-proprietors, and delivered to him, to the effect that they were in favor of the proposed extension, conditioned that none of their rights theretofore enjoyed were to be impaired thereby.

p. 490

The bill alleged that the paper was received and approved by him as the agent of the city, as a sufficient assent on the part of those proprietors, to the rebuilding and - extension of the pier at the joint expense of the city and of the proprietors, and that the condition therein contained, had reference to the wharf-age arising from the whole of the outermost end of the pier, which had theretofore been collected and received by them, and was intended to save and protect such right for the wharfage to accrue from the whole of the outermost end of the pier, when the same should be so extended; and that the condition was so understood by the street commissioner.

That pier Ho. 20 was rebuilt and extended accordingly, and that such extension was completed in January, 1840 ; and the proprietors paid two thirds of the expense of such extension. That in May, 1840, a resolution was passed by the common council, directing that pier Ho. 19 should be extended into the East river, not exceeding eighty-three feet, under the direction of the street commissioner, and that he should take the neces-sary measures to effect the same.

That the street commissioner accordingly published the usual notice, requiring the proprietors to signify their assent to such extension, and their willingness to contribute towards the expense thereof, and that a paper was drawn up by the street commissioner, signifying such assent of the proprietors.

That previous to signing the paper by any of the proprietors, a condition was added thereto by them, or on their behalf, in the words following, that is to say :

“We agree to the above, on the express condition, that none of our rights heretofore enjoyed, are to be impaired thereby.”

That such condition having been added, the paper was signed by the proprietors, or the majority of them for themselves and their co-proprietors, and was delivered to the street commissioner, and received and approved by him as the agent of the city; and that the condition therein contained had reference to the wharfage accruing from the whole of the outermost end of the pier, theretofore collected and received by the proprietors, and was intended to save and protect such right for the wharf-

p. 491

age to accrue from the whole of the outermost end of the pier, when the same should be so extended; and that the condition was so understood by the street commissioner.

That pier ETo. 19 was extended accordingly, and that such extension was completed in October, 1840, and that the proprietors paid two thirds of the expense thereof. The plaintiffs claimed and insisted that when the two piers had been so extended, the right which the proprietors had acquired and enjoyed to the wharfage from the whole of the outermost ends of the piers, before such extension, became attached to the outermost ends of the piers when so extended, and enured to their benefit for the whole of the wharfage to arise therefrom. The bill also stated, that from the time when the extension of the two piers was completed, until May, 1844, the right of the proprietors to the wharfage accruing from the whole of the outermost ends of the piers as so extended, was not obstructed or interfered with by the city; and that such wharfage was collected and received by the agent of the proprietors ; but that since the 1st of May, 1844, a claim had been setup and asserted on behalf of the city, and by its agents, for one half of the wharfage accruing from the outermost ends of the two piers, and the proprietors had been thereby disturbed in the exercise of their just right to collect and receive the whole of such wharfage. That.the city had given a lease of the wharfage of pier 20, to William C. Taylor, and of pier 19, to Edward Conway; who, thereupon, claimed half the wharfage from the ends of those piers. That the annual value of the wharfage from the outermost ends of the two piers was about fifteen hundred dollars.

The bill then set forth the reasons why the proprietors could not have an adequate remedy at law. It prayed for an injunction against the corporation, Taylor and Conway; for a receiver, and that the complainants and their co-proprietors, might by the decree of the court, be quieted in their right to all the wharfage accruing at the outermost ends of the two piers, and each of them, and in the full possession and enjoyment of such right, and for an account of any wharfage which might have been received by the city or its agents, from the ends of those piers.

p. 492

The mayor, &e., of the city put in an answer, in which they denied, that the plaintiffs were legally or equitably entitled, or had any just or valid right, to the whole of the wharfage accruing from the outermost ends of the piers Ho. 19 and 20, and alleged that the right of the plaintiffs to the wharfage accruing at the outermost ends of the piers, if any such existed, was limited to the one half part of the same ; the other half belonging to the corporation. They denied that the right set up in the bill of complaint to the wharfage accruing on South street, between Maiden lane and Burling slip, was derived from grants theretofore made by the corporation of the city for the lots and premises lying between Maiden lane and Burling slip, and fronting on the then exterior line of the city on the East river, as alleged in the bill. They admitted- that piers 19 and 20 were built in 1809, running out from South street into the East river, by order of the corporation; but whether or not the same were so built while the proprietors who then held the rights now represented by the complainants, were in the enjoyment of the whole of the wharfage accruing on South street, between Maiden lane and Burling slip, they were ignorant. They admitted that the then proprietors paid two thirds of the expense of building the piers, and the city paid the other third of such expense.

qThe defendants also alleged in their answer, that it has been of old, and is now the usage and custom of the corporation of the city of Hew York, to let and lease by public auction to the highest bidder, the wharfage, slipage, dock-age, cranage, and other perquisites and emoluments accruing from, and of right payable at, the wharves, piers, and slips, belonging to the corporation, or so much and such parts thereof as the city corporation may deem and consider advisable; that the wharves, piers, and slips, belonging to the corporation, so to be leased within certain limited and specified bounds, compose what is technically termed a district, and are offered to be leased for the term of one year to the person willing to take the same, and pay the highest annual rent therefor, and furnish satisfactory security for the payment of the amount bid as rent, and are struck off to the highest bidder on these terms. That at the time of such sale being made, the wharves, piers, and slips

p. 493

so belonging to the corporation and proposed to be leased within a certain district, are represented and defined on certain maps prejjared for the purpose, which maps represent with truth, precision, and accuracy, the position, extent, and bounds of the several wharves, piers, and slips, at which the corporation are legally entitled to collect the wharfage, perquisites, and other emoluments, and the leases thereupon granted are drawn and executed in conformity with the maps ; that the lessees in the leases named, under and by virtue thereof, acquire the right of the corporation to such wharfage and emoluments accruing at the several wharves, piers, and slips within such, district, without any liability to account therefor to the corporation, but" to and for the use of the lessees respectively, and that the defendants could not, therefore, state with certainty whether any wharfage was or was not collected at piers, Ros. 19 and 20, by the lessees of the defendants, during the period of thirty years, in the bill mentioned ; but the defendants insisted that the neglect, default, or omission of such their lessees to collect the wharfage and emoluments, to which such lessees were rightfully entitled, could not prejudice the defendants; and the defendants insisted that if the fact were that such lessees did actually neglect, and omit to collect such wharfage and emoluments which the defendants in no wise admitted, the same could not be deemed or taken to be the acquiescence of the defendants in the right set up by the complainants to the whole of the wharfage, as was charged in the bill.

That for a great number of years last past, and for more than fifteen years before the commencement of this suit, the two piers, Ros. 19 and 20, and the full and equal moiety or half part of the outermost ends thereof, were regularly designated on the map of the corporation wharves, piers, and slips before mentioned, and the right to the wharfage and emoluments aforesaid, accruing at those piers, and at the one-half part of the outermost ends thereof, was sold and leased in the manner before particularly described; and the defendants insisted that the making of such maps, sales, and leases for the period last mentioned, was a full and perfect answer to, and denial of the allegation in the bill, that by such long and undisturbed receipt and enjoyment

p. 494

of the wharfage by the proprietors, and the acquiescence of the city therein, the right of the proprietors to the whole of the wharfage accruing from the outermost ends of the two piers had become established.

The defendants then set forth, that one third of the extension of the piers 19 and 20, was paid by them; and insisted they had and have a legal, valid, and indefeasible right to the entire wharfage accruing on one side of each of those piers adjacent to the slips abutting on the same respectively, and also the one half of the wharfage to arise from the outermost end of the two jiiers, and each of them.

The defendants alleged that they had, for a period long prior to the commencement of this suit, exercised acts of ownership over the half part of the outermost ends of the two piers 19 and 20; both before and after the same were extended, and had leased the wharfage arising therefrom.

The defendants Taylor and Conway answered separately, insisting on their rights as lessees. Replications were filed, and proofs taken in the cause.

A stipulation was entered into by and between the solicitors for the respective parties, by which it was admitted that previous to, and at the time of the building of the piers, Eos. 19 and 20, mentioned in the pleadings, the complainants and their co-proprietors, or those- from whom they derived title, were the owners of the lots and premises fronting on South street, between Maiden lane and Burling slip; that the facts alleged in the bill, in respect to the execution by the proprietors, of the assent to the rebuilding and extension of the piers, on the 21st of March, 1839, were true, excepting therefrom the motives of the persons signing the paper, or their reasons therefor, or the construction put on the same; and that the plaintiffs represented all persons having or claiming any interest in the wharfage accruing from the ends of the piers, Eos. 19 and 20, adversely to the defendants. By another stipulation, it was admitted by the complainants, that the statement in the answer of the mayor, &c., as to the usage and custom of the corporation of selling or letting wharfage, &e. is true. Also, that at the time of any such sale, the wharves, piers, and slips, belonging to or claimed by

p. 495

the corporation, and proposed to he leased within a certain district, are represented and defined on a general map or maps, of all the wharves, piers, and slips in the city; the portions thereof which are colored on those maps, being those at which the corporation claims to be entitled to collect the wharfage. It was not admitted, however, that the leases granted upon such sales were drawn or executed in conformity with the maps, there being no reference whatever, in any such lease, to any map ; but it was admitted, that the lessees acquire by virtue of such leases, whatever right the corporation may have to the wharfage accruing at any wharf, pier, or slip, within the district so leased, without any liability to account therefor to the corporation, its officers or servants, but to and for the use of the lessees respectively. It was also admitted, that for more than fifteen years before the commencement of this suit, the two piers, Mos. 19 and 20, and the full equal moiety, or half part of the outermost ends thereof, as they existed before they were extended, respectively, were designated by being colored on the maps above mentioned, and that whatever right the corporation may have had to wharfage accruing at any part of the same piers, was sold and leased in the manner above mentioned.

JR. Emmet, for the plaintiff.

JHJ. E. Ernies and W. Kent, for the defendants.

The bill in this case was filed, for the purpose of determining the rights to wharfage, accruing on the outermost ends of piers 19 and 20 ; the former being on the easterly side of the slip at the foot of Maiden-lane, formerly called Fly Market-slip; and the latter lying on the westerly side of Burling-slip, in the city of Mew York.

Upon the argument of the cause, the powers and rights of the corporation, in reference to wharfage, and the building of piers, slips, and wharves, derived from colonial charters and acts of the legislature of the state,were discussed and reviewed with signal ability and learning. A reference to those charters, and to the early acts of the legislature, while it becomes necessary in the deci

p. 496

sion of this case, will serve also to show the enlarged views entertained in former times by the municipal rulers, of the commercial importance and advantages of this city, in the provision which they sought to make for the accommodation of that commerce, which, in our day, is literally whitening every ocean with its canvass, and vexing every sea with its keels.

The charter of Dongan, in 1686, recited, that the citizens and inhabitants had, among other things, erected and built the “bridge into the dock, the wharves and docks, with their appurtenances,” and it ratified and confirmed the title to the corporation ; and in the Montgomery charter, in 1130, the original grants are confirmed and ratified, and new grants made, embracing among other things, “ all the waste, vacant, unpatented, and unappropriated land, lying and being within the said city of New York and on Manhattan’s Island aforesaid, extending to low water mark; together with the right, benefit, and advantage of all docks, wharves, cranes, and slips, or small docks, within this city, with wharfage, cranage, dockage, and all issues, rents, profits, and advantages arising, or to arise or accrue, by or from all, or any of them.” By this same charter also, was granted the land under water, extending four hundred feet from low water mark, into Hudson’s and East Eivers, beginning at Bestaver’s EUlitie on the former, and running round to Corlaers’ Hook on the latter river.

Such were the grants under the charters, when the act of the third of April, 1198, was passed by the legislature, upon the petition of the common council. That petition stated, that the corporation had directed permanent streets, seventy-five feet in width, to be laid on the North or Hudson’s and on the East Eivers; the former, on the Hudson, to be called West-street, and the latter on the East Eiver, to be called Soiith-street; west and south of which streets, no buildings would be permitted to be erected; that these streets were at and on the extremity of the grants made to individuals by the corporation, and that a part of the plan of the corporation was to extend piers at right angles from those permanent streets into the rivers, at proper distances from each other, to be determined by the corporation, with suitable bridges for the accommodation of sea vessels, and

p. 497

so constructed as to admit the currents at both ebb and flood, in both rivers, to wash away all impurities; that doubts had arisen, whether the corporation could compel individuals to sink and lay out those piers, and whether the corporation, in default of individuals, could do it themselves, at the expense of the city, and receive the wharfage.

The fifth section of the act of 1798, declared “ that it shall and may be lawful for the said mayor, aldermen, and commonalty to direct piers to be sunk and completed at such distances and in such manner as they, in them discretion, shall think proper, in front of the said streets or wharfs, to be so made as aforesaid, and to be connected with the same by bridges, at the expense of the proprietors of the lots lying opposite to the places where such piers shall be directed to be sunk, and by such days and times as the said mayor, aldermen, and commonalty may, for that purpose, limit and appoint,” &c., and in case of default, then the corporation was authorized to sink the piers and receive the wharfage to their own use.

On the 3d April, 1816, the act of 1798 was re-enacted, with additional powers, among which was the power given to the corporation to grant to the owners of lots fronting on the streets forming the permanent outer line, a common interest in the piers to be sunk in front of such streets, in proportion to the breadth of their respective lots, under such restrictions, and within such limits as the mayor, aldermen, &c. should deem just and proper. A large number of grants had previously been made by the corporation to individuals, many of which extended to South-street, the permanent outer street, and which marked the exterior line of the original grants to the corporation under the charters. Tim piers extending at right angles to this street, would of course be built upon land belonging to the state. In the case of the Corporation of the City v. Scott, 1 Caines’ Rep. 543 , a question arose as to the right of wharfage, accruing from one side of a pier which had been built on the corner of Wall and South streets, under an ordinance of the corporation, founded on the acts of the legislature, before referred to. At the foot of Wall street was a public slip belonging to the corporation; and in the ordinance, directing and authorizing the building of this pier, the corporation

p. 498

reserved to themselves the wharfage or slipage, which might accrue on the side of such pier adjacent to the slip. The court decided in that case, that the corporation had no right to such wharfage, because the land on which the pier was erected was ■ never granted to them; that no implied grant was contained in the acts of the legislature, and that the corporation were only to grant to others, as attorneys of the public, in case piers were sunk, and that in the reservation of wharfage to themselves in the ordinance, they had exceeded their powers, and that such reservation was not binding on the owner. This ease was one of great interest and importance to the city, and it was argued by four of the most distinguished men who were at the bar in this state, at the commencement of the present century.

The case of the Corporation v. Scott, was decided in February, 1804; and in April, 1806, another act was passed by the legislature, the second section of which is in the following words :■—■ “ That in all cases, where the said mayor, aldermen, and commonalty shall think it for the public good, to enlarge any of the slips in the said city, they shall be at liberty and have full power so to do, and upon paying one third of the expenses of building the necessary piers and bridges, shall he entitled not only to the slipage of that side of the said piers which shall be adjacent to such slips respectively, but also to one half of the wharfage to arise from the outermost end of the said piers.”

It was under the power given in the foregoing section, that the piers 19 and 20 were first sunk in 1809, at the joint expense of the corporation and the owners of the lots on South street, under an ordinance adopted on the petition of those owners. As the power is given to enlarge any of the slips, it was contended, that the sinking of the piers in question was not such enlargement; and it was sought to bring this case within the decision of the supreme court, in the case of the Corporation v. Scott. The word slip, is said to be peculiar to this state in its application to structures or places for the accommodation of vessels. The word' is used in some of the old colonial acts and in the Montgomery Charter, in the extract hereinbefore given, in which, among other things, the corporation is declared to be the owner of the slips or small docks.

p. 499

In the case of the Corporation v. Scott, definitions were given as follows, by Mr. Eiggs, counsel for the city: “The piers, (which form, the slips,) are under direction of the corporation,” &c. By the court: “ This is no slip, which is an opening between two pieces of land or wharves.” By the reporter: “ A slip is an interval or vacancy between two piers.” We may adopt the definition given by the court as the correct one. But after all, it does not appear to us to be very material, for the act seems to point out the precise manner in which the slips were to be enlarged ; especially when taken in connexion with the acts of 1798 and 1801, and the facts and decision of the case in 1st Caines, so often referred to. Piers 19 and 20 were not slips, any more than the pier built at the foot of Wall street, but they were extensions of the sides of Fly Market and Burling slips.

It seems to be the mode of enlargement contemplated by the statute of 1806, if the corporation should think it for the public interest to enlarge any of the slips, they should have power so to do; and on paying one third the expense of building the necessary piers, bridges, &c. should be entitled to the slipage of that side of the new piers adjacent to such slips. It certainly could not have contemplated an enlargement by widening, but by carrying out piers in the mode provided in the acts of 1798, as had been done on the corner of Wall and South streets. It must be borne in mind, that in 1804, the corporation owned all the public slips, at least so it was conceded by all the counsel engaged in the cause of the Corporation v. Scott; and in building these piers, the corporation did under the law of 1806, what they could not do under the laws of 1798 and 1801, except, that in that case, they reserved wharfage without contributing any portion of the expense; and in this case they paid one third.

That the corporation paid less than the owners of the land from which the piers were extended, may have been owing to a variety of circumstances; such extensions producing an increase of business, may have added to the value of the lots fronting on South street and those slips. The state was the owner of the land on which the piers were built, and gave a power to the corporation for its use, in connexion with the owners of the lots;

p. 500

and the legislature fixed the proportion of expense to be borne, and the proportion of the profits to be enjoyed by each.

We are therefore of opinion, that the building of those piers . was legal, and authorized under the act of 1806 and previous acts. It is hardly necessary to add, that the addition of a pier to one side of a slip, in our judgment, must necessarily operate as an enlargement, even though no corresponding pier is extended from the other side of the same slip. The law of 1806, was re-enacted in 1813 in the revised laws of that year; and in 1839, a further extension of those piers took place again, with the consent of the owners, except so far as such consent was qualified by the conditions attached.

It is only under this agreement with the corporation, that the plaintiffs obtain the right to a portion of the wharfage. If these piers were not .proper enlargements of the slips, then it would seem that the plaintiffs fail to establish any title in themselves, as the land and wharfage would belong neither to them nor to the corporation, but to the state ; and thus failing in title, they cannot of course recover in this suit against the corporation. But as before remarked, we consider the title of the plaintiffs and the corporation as perfect under the acts referred to; and we shall proceed to the other important question in the case, that is, whether the plaintiffs are entitled to the entire wharfage derived from the outermost ends of those piers. The plaintiffs claim that they have enjoyed such wharfage from the first sinking of the piers in 1809 ; and that in the extension of 1839, they assented on the condition that their exclusive rights to such wharfage derived from the outermost end of the piers should be reserved to them; in other words, the plaintiffs claim title to the exclusive enjoyment of such wharfage, by prescription, founded on more than thirty years possession prior to 1839, and a reservation of such title in the proceedings in 1839.

The defendants answer, that they and the complainants were tenants in common; and that there has been no actual ouster. That the defendants never acquiesced in such exclusive enjoyment by plaintiffs, that if plaintiffs had acquired a title previous to 1839, the new proceedings for enlargement of the slips by a

p. 501

further extension of the piers, restored the right of the corporation to the one-half of such wharfage; and lastly, that there is no sufficient proof to warrant the court in presuming a grant. It will at once be seen, that the presumption of a grant lies at the foundation of the plaintiffs’ title. If there has been no grant, or none can be fairly presumed, they must fail; and it is only on this .presumption, that it may become necessary to consider whether, by the proceedings in 1839, the plaintiffs lost the rights which they claim they had previously acquired by prescription. Whether or not a grant will be presumed, is peculiarly the province of a jury to determine; and after a most earnest and careful consideration of this question, looking at the testimony which is before us, and to the nature of the claim, we have come to the decided conviction, that our duty in this case is to send that question to a jury.

It is very evident, that further testimony should be produced, if the same can be procured, in order to effect a satisfactory decision of the cause. The proof of an uninterrupted perception and appropriation of the wharfage from 1809 to 1840 by the plaintiffs, if they succeed in adducing it, will of course affect the question of tenancy in common. It is, we think, hardly to be denied, that an uninterrupted exclusive enjoyment of the wharf-age for so long a period, under claim of title, would be evidence of ouster against a tenant in common. Whether there has been such an exclusive and uninterrupted enjoyment, with the knowledge and acquiescence of the defendants; and whether, upon clear and satisfactory proof of it, a jury will presume a grant, are questions which should be left to their determination.

The question to be submitted to the determination of the jury, will be whether the plaintiffs, and those under whom they claim, had acquired, by prescription, an exclusive right to the whole of the wharfage at the outermost end of the piers, previous to the date of the agreement, in 1839; und all other directions will be reserved.