WEST COAST NAVAL STORES CO. v. LOUISVILLE & N. R. CO., 121 F. 645

PARDEE, Circuit Judge (after stating the facts as above).

The case shows that the Louisville & Nashville Railroad Company is in the possession of a large wharf, built at its own expense on the extension of a public street in the city of Pensacola into the deep waters of the harbor of the city, on which street and wharf it has laid railroad tracks connecting with its main line and depot in the city, over which tracks the railroad company carries and transports goods ordered and intended for shipment by water, making a quasi terminal of said wharf; and the question is whether this wharf is a public wharf, or, if not public, but a private wharf, is it so located and used that the public has a right to have goods intended for shipment by water beyond Pensacola carried to said wharf, and have ships moored at said wharf, and there take on its said goods? “Piers or landing places, and even wharves, may be private, or they may be in their nature public, although the property may be in an individual owner, or, in other words, the owner may have the right to the exclusive enjoyment of the structure, and to exclude all other persons from its use, or he may be under obligation to concede to others the privilege of landing their goods or of mooring their vessels there upon the payment of a reasonable compensation as wharfage; and whether they are the one or the other may depend, in case of dispute, upon several considerations, involving the purpose for which they were built, the uses to which they have been applied, the place where located, and the nature and character of the structure.” Dutton v.

Strong, 1 Black, 23, 32, 17 L. Ed. 29. In the same case it is held that riparian proprietors have a right to erect bridge piers and landing places on the shores of navigable rivers, lakes, bays, and arms of the sea, if they conform to the regulations of the state, and do not obstruct the paramount right of navigation, but the right to make such erections terminates at the point of navigability.

And of such improvements it is said that the riparian proprietor may construct any one of them for his own exclusive use and benefit; and, if not located in a harbor or other usual resting place for vessels, and if found within a shore of the sea or the unnavigable waters of the lake which has not been used, or held out as intended to be used, by others, the public have no right to make use of the same.

The structure in this case is located in deep water, in a harbor where many ships lie at all seasons of the year; it was built, as shown by the plea, for the purpose of providing facilities for the transaction of such business as the railroad company might desire with such vessels as it might permit to come and lie by said wharf to take cargo; and it limits the use of the wharf to traffic handled by vessels in the regular lines running in connection with the Louisville & Nashville Railroad, and vessels belonging to or consigned to the Gulf Transit Company (an agency of the railroad), and to traffic in connection with other vessels subject to special arrangement; in short, the use of the wharf is limited by the railroad company to vessels of connecting lines, and to such others as the company sees fit to permit.

In Indian River Steamboat Company v. East Coast Transportation Company, 28 Fla. 387, 10 South. 480, 29 Am. St.

Rep. 258, where was involved questions very similar to those herein, the Supreme Court of Florida held: “A railroad corporation, under the laws of Florida, has the right to erect and maintain docks, wharves, and piers, as incidents to its business, and to hold or dispose of them as may be deemed proper; but such corporation engaged in the business of common carrier has no right to lease the terminal point of its railroad track and terminal facility on a navigable stream to a steamboat company, and thereby defeat the ingress and egress to and from said railroad track on the part of other competing lines of steamboat companies.” And in the opinion said: “The real question presented here is, can complainant corporation, engaged in carrying freight and passengers on the Indian river by means of steamboats, rent from a railroad common carrier its dock on said river on which its track and terminal facilities are located, and exclude others from landing at said terminal point for the purpose of delivering and receiving freight and passengers to and from said common carrier?

This question, we think, must be answered in the negative. If it be competent to sustain such a contract, the common carrier can select one connecting line of boats, and exclude all others from doing business with it. Such a doctrine would lead to the legalizing of a monopoly, and the sanction of an unfair and unjust preference between connecting and competing lines of transportation. We do not understand that a common carrier ever had such power as this.” In Barrington v. Commercial Dock Company (Wash.) 45 Pac. 748, 33 L. R.

A. 116, the right of the owner of a wharf located on the shore of Commencement Bay, in the city of Tacoma, where the water at the outer edge of the wharf was of the depth of eight feet low tide — the same situated on a waterway approachable from the sea and the waters of Puget Sound — and where certain vessels approved by the owner of the wharf, competing in business with other vessels, were permitted to land, to exclude certain other vessels in the same competing business, not approved by the wharf owner, was much considered, and the court said: “The main contention of appellant is that its wbarf is a private wharf, and under the control of the owner, and that it has a right to determine for itself with whom it will do business; and counsel confidently cites

section 2136, Hill’s Ann. St. & Codes, in support of this position. * * * The section, as a whole, while it recognizes the right of private ownership in wharfs, cannot be construed to mean that such private property may not be devoted to such use as will, in contemplation of law, make it partake of the nature of a public wharf. Upon this question it was said by the Supreme Court of the United States in Dutton v. Strong, 66 U. S. 32, 17 L.

Ed. 32, that ‘piers or landing places, and even wharves, may be private, or they may be in their nature public, although the property may be in an individual owner, or, in other words, the owner may have the right to the exclusive enjoyment of the structure, and to exclude all other persons from its use, or he may be under obligation to concede to others the privilege of landing their goods or of mooring their vessels there upon the payment of a reasonable compensation as wharfage; and whether they are the one or the other may depend, in case of dispute, upon several considerations, involving the purpose for which they were built, the uses to which they have been applied, the place where located, and the nature and character of the structure.’ In Gould, Waters, § 119, the'author lays down the proposition, and supports it by a great array of authorities, that, ‘when wharves belonging to individuals are legally thrown open to the use of the public, they become affected with a public interest, and the wharfage must be reasonable.’ The proof in this ease shows that numerous steamers landed at appellant’s wharf daily, discharging passengers and baggage, as well as freight, from different ports in the waters of Puget Sound and elsewhere; and it also shows that the appellant receives the sum of 25 cents per ton for every ton of freight going out or coming in over said wharf.

We think that the language of the court in Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77, is applicable here, viz., that appellant stands ‘in the very “gateway of commerce,” and takes toll from all who pass.’ In The Kate Tremaine, 5 Ben. 60, Fed. Cas. No. 7,622, it is said: ‘A wharf is a necessity of modern navigation, and of navigation alone.

The sole object of its erection is to facilitate the transportation of passengers and freight upon navigable waters. * * * Every vessel has a license to use, for her safety or convenience, any public wharf on navigable waters, upon paying reasonable wharfage.’ We think that, in determining the character of appellant’s wharf, regard should be had to the use to which it has been devoted, rather than its private ownership, and that, upon the facts found, the position of the appellant cannot be maintained.

As well might the proprietor of a stagecoach claim the right to discriminate upon the ground that the property employed in his business was private property.

The doctrine, if maintained, would tend to promote and further monopolies, which is not the policy of our law to favor.” The foregoing well-considered cases seem to furnish sufficient authority for holding that a wharf built out into the deep waters of a harbor like that of Pensacola, where ships coming from and going to all parts, land, lie, moor, and anchor for rest and loading and unloading, and which is used by the owner for his own business, and for such ships of others engaged in competing business as the owner may see fit to permit, is, by its location and use, open to all ships whose traffic calls them to take goods therefrom.

When the case goes further, and we consider that, in addition, the wharf is a quasi railroad terminal, where all goods, as ordered, are carried, and to which all consignees of goods ought to have access, the reasons are decidedly more potent for holding that such wharf, located in public waters which are free to all, is affected with a public use, and cannot lawfully be farmed out to a small portion of the shipping public, to the encouragement of a monopoly and the hindrance of competition. And the monopoly in the instant case at the wharf is not the only resulting evil.

Controlling the wharf, as it claims the right to do, gives the railroad company the entire control at nearly all, points on its line as to shipment of goods destined to water transportation beyond Pensacola, both as to route and rates. The learned counsel for defendant in error has briefed a very plausible argument in favor of the right of the railroad company to discriminate against shippers and competing vessels for business at the wharf in question, and in favor of such competing vessels as it sees fit to permit, and, with much industry, has collated numerous authorities on the propositions submitted by him.

On the proposition that a common carrier may hold itself out to the public as willing to serve it, and every member of it, just as far as it pleases, and its liability will be coextensive with such holding out, he cites Dickson v. Great Northern Railway Co., L. R. 18 Q. B. Div. 176; Johnson v. Midland Railway Co., 4 Ex. 367; Hosea v. McCrory, 12 Ala. 349; Whitemore v. Steamboat Caroline, 20 Mo. 513; Lake Shore, etc., v. Perkins, 25 Mich. 329, 12 Am. Rep. 275.

That a common carrier may devote portions of its facilities to its own use, or to the use of particular individuals, and thus refuse to be a common carrier as to those facilities: People v. Railway Co., 57 Ill. 437, and Citizens’ Bank v. Nantucket Steamboat Co., 2 Story, 16, Fed. Cas. No. 2,730; Hutch. on Carriers, 75. Counsel also announces the proposition that one common carrier has no right, independent of charter or contract, to use the terminals of another carrier; citing Atchison, T. & S. F. R. Co. v. Denver & N. O. R. R., 110 U. S. 667, 4 Sup. Ct. 185, 28 L. Ed. 291; Gulf, Colorado & S. F. Ry. v.

Miami Steamship Co., 30 C. C. A. 142, 86 Fed. 407, 416, 422; Little Rock & Memphis R. Co. v. St. Louis Ry. Co., 11 C. C. A. 417, 63 Fed. 775, 781; Little Rock & Memphis R. Co. v. St. Louis, I. M. & S. Ry. Co. (C. C.) 59 Fed. 404. Again, that a transportation company operating a railway and a line of steamboats 'connecting it at the company’s wharf is not required by the third

section of the interstate commerce act of February 4, 1887, 24 Stat. 380 [U. S. Comp. St. 1901, p. 3155], to permit the boats of a competitor to land at such wharf: Ilwaca Ry. & Navigation Co. v. Oregon Short Line, etc., 6 C. C. A. 495, 57 Fed. 673. Counsel also cites cases too numerous to mention as to the proposition that a railway company has a right to discriminate between draymen, hackmen, etc., desiring to use depot and like facilities of the railroad. These authorities are said to be collected in Donovan v. Pennsylvania Co. (C. C. A.) 120 Fed. 215.

None of these propositions are, in our opinion, applicable to the present case, and the only one of the adjudged cases cited which seems to bear upon propositions here involved is Ilwaca Railway Navigation Co. v. Oregon Short Line, etc., supra. An examination of that case shows that the Oregon Short Line & Navigation Company controlled both the railway and the steamship line connecting with the wharf in question, and we find nothing decided therein to conflict with our views of the present case.

If the wharf involved in this cáse, although in the deep waters of a navigable harbor, was used by the railroad company solely for its own carrying business in connection with its own lines, a different case would be presented; and we have herein quoted from Indian River v. East Coast Trans. Co., supra, to that effect. As we hold to the views herein expressed, we are called on to reverse the judgment of the Circuit Court and remand the case, with instructions to sustain the demurrer to the third plea, and otherwise proceed according to law. And it is so ordered.