corroborating evidence aforesaid the decree must be reversed and annulled, and a new trial of the issue directed.

320

The decree was as follows:

*This day came again the parties by their counsel; and the court, having maturely considered the transcript of the record of the decree aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that on the trial by the jury of the issue ordered by the said chancery court of the city of Richmond on the 11th day of November, 1873, the said court erred in excluding as evidence from the jury the deposition of Joseph Clittermary and others, offered by the plaintiffs in the issue to sustain the character of the witness Charles Mink, whose deposition had been read by said plaintiffs in evidence to the jury; and that the whole of the decree aforesaid based upon the verdict of the jury rendered on said trial, except such part thereof as relates to the appointment of the receiver therein mentioned and the directions given to such receiver, is erroneous. It is therefore adjudged, ordered and decreed, that the said decree, so far as it is hereinbefore declared to be erroneous, be reversed and annulled, and that the same be affirmed in all other respects; and that the appellees (except John M. Pilcher) pay to the appellants their costs by them expended in the prosecution of their said appeal here. And this court proceeding to pronounce such decree as the said chancery court ought to have pronounced, it is further adjudged, ordered and decreed, that the verdict of the jury rendered on the trial of the issue aforesaid be set aside, and that the parties in said issue proceed again to the trial thereof at the bar of said court, and upon said trial that the said court proceed in conformity with the opinion hereinbefore expressed. Which is ordered to be certified to the clerk of the said chancery court of the city of Richmond.

DECREE REVERSED.

321

get to the wharf at which she was to deliver her loan on account of an obstruction in the stream by another vessel, drew up to the city wharf and moored to it, and whilst waiting there she sunk on the next low water, from a pile going through her bottom. This pile was oak, being about two feet from the wnarf, in the stream where a vessel at the wharf would probably lie, and was visible at low water, though it was some two feet or more above the bed of the river, and was firmly fixed there-HELD:

1.

2.

322

Obstructions-Liability of Municipal Corporations.*-The allowing such an obstruction in the place where it was, was negli gence; and the city of Petersburg being the owner of the wharf, is liable for the damages occasioned by it.

Same-Same-Delegating Duties.-The fact that the city had appointed a port warden whose duty it was to attend to the removal of obstructions in the stream, and to attend to the duties of the city in regard to the city wharf, does not exempt the city from liability for the damages. The port warden in this matter is but the agent of the city, and the principal is always bound for the acts and neglects of his agent. The same rule which applies to a private principal, applies to a corporation, whether ordinary or municipal, and a fortiori to a corporation which can only act by an agent. $3.

Same-Same-Same.-The fact that it has been made by statute the duty of the Lower Appomattox company to dredge and remove obstructions from the river at and below Petersburg, cannot relieve the city from her liability. The city is in fact the company owning all the stock and appointing the officers of the company. But even if it was an independent organization, its obligation to perform a duty which the city is also bound to perform on common law principles, would not relieve the city from its common law liability for the non-performance of such a duty.

4. Same-Same-Federal Appropriations. -Nor can it make any difference that the United States have made appropriations to the improve*Torts-Municipal Liability-Wharf Owners. See the opinion in Terry v. City of Richmond, 94 Va. 537, in which the court discusses fully the

*City of Petersburg v. Applegarth's liability of a municipal corporation for its torts, citing

Adm'r.

[26 Am. Rep. 357.]

March Term, 1877, Richmond.

and distinguishing the principal case and many other Virginia cases. As to duties of wharf owners, see 29 Am. & Eng. Enc. Law 86. In Mendil v. Wheeling, 28 W. Va. 250, the court says that the principal case "gives no countenance to the claim, that a municipal corporation owning and operating its waterworks and receiving 'water rent' for water furnished, is responsible in damages to a property owner for loss by fire through the failure of the city authorities to keep the water pipes in proper condition and repair." In Ravenswood v. Flemings, 22 W. Va. 69, the principal case is cited for the proposition that municipal corporations are held to the strictest liability for any injury occasioned by reason of the bad repair of wharves owned by the city. See Maia v. Eastern Hospital, 97 Va. 510, for an instance of the nonliability of a public corporation for injury occasioned by its negligence on the ground that the said cor2. The city of Petersburg owns a wharf in the Appo- poration acted exclusively as an agent of the state. mattox river, for the use of which the city is See also, Richmond v. Long, 17 Gratt. 375; DeVoss authorized to charge and does charge wharfage. v. Richmond, 18 Gratt. 344; Noble v. Richmond, 31 In October 1872 the vessel of A not being able to Gratt. 278; Orme v. Richmond, 79 Va. 89.

1. Owners of Wharves-Obligations as to Hidden Obstructions.-According to the principles of the common law, the owner of a wharf who receives or is entitled to receive wharfage for vessels moored to said wharf, is bound to use at least ordinary care and diligence in keeping the water adjacent to such wharf in which vessels lie while moored thereto, free from obstructions, and is liable for any damage done to any such vessel by reason of the neglect of such duty; and the same principles apply, whether such owner be an individual, or a corporation, whether such corporation be private or municipal.

5.

to the city wharf.

of

a

323, 324, 325 ment of the navigation of the river, and have necessarily sustained occasionany dredged it. This does not relieve wit: great damage, to the city from its common law liability in regard he avers he necessarily expended in raisloss of $1,262.43, which said sum ing said vessel and her cargo, and in *repairing said vessel, and the further special damage which said plaintiff necessarily great sum, to wit: the sum of $650, sustained by being deprived of the and enjoyment of said vessel, and her ordithe time that she was sunk, being raised and nary gains and profits to said plaintiff during repaired.

case

Same-Same-Receipt Wharfage. 324
-Nor does it make any difference, that in this
no wharfage was actually received by the
city, and that it does not usually charge wharf
cases where the vessel mooring at her

age in
wharf is not to be unloaded there. It is suffi-

cient that the city was entitled to charge wharfage.

This is a supersedeas to a judgment of the circuit court of the city of Petersburg, rendered on the 4th day of June 1873, in an action of trespass on the case brought by William Applegarth against the city of Petersburg.

The declaration contained four counts. The first was in substance as follows: that before and at the time of the committing of the grievances, hereinafter mentioned, the defendant was the owner, and was possessed of a certain wharf for the landing, mooring, loading and unloading of vessels on the banks of the Appomattox river, within the corporate limits of the city of Petersburg, and known as the city wharf, near to which said wharf there was then a certain obstruction, to wit: a pile before then, by the defendant carelessly and negligently placed, and then being at and upon the bottom of said river, over which pile, at certain states of the tide of said 323 river, the vessel of the *plaintiff hereinafter mentioned would float, but at other states of said tide said vessel would not float, of all of which premises said defendant had notice at and before the time aforesaid; that at the time of the committing of said grievances, and while the defendant so owned and possessed the wharf aforesaid, the plaintiff owned and possessed a certain vessel called the North Carolina, of great value, to wit of the value of $5,000, then being lawfully, by sufferance and permission of said defendant, at and along side said wharf for reward to said defendant in that behalf; and said defendant had the management and control of said wharf, and the mooring and stationing of vessels at and near the same, whilst such vessels were at such wharf for the purpose of using the same, and said defendant had the legal right to charge and demand of the said plaintiff wharfage there for; yet the said defendant, at the place aforesaid, and on the 15th day of October 1872, unskilfully, negligently and improperly moored and stationed said vessel of said plaintiff in that part of said river near said wharf and over said obstruction, to wit: over said pile, and unskilfully, negligently and improperly detained said vessel for a long and improper time over said pile, and until said vessel on the day and year aforesaid, upon the natural and usual fall of the tide in said river came, fell and lodged upon, and struck against, said pile at the bottom of said river, and there remained and continued upon, and striking gainst, said pile for a long time, and thereby became, and was greatly strained, bulged, broken, pierced and injured, and was sunk; in consequence and by reason of which injuries, done by said defendant, said plaintiff

use

The second, third and fourth counts are very nearly to the same effect with the first, and it is unnecessary to state the particulars in which they differ from each other.

The plaintiff having died shortly after the institution of the action, his death was suggested, and the action was revived in the name of his administrator, George S. Bernard.

Thereafter the defendant filed a demurrer to the third and fourth counts of the declaration, in which demurrer the plaintiff joined. The court sustained the demurrer to the third count, and overruled the demurrer to the fourth count; and thereupon the defendant pleaded not guilty to each count of the declaration, except the third, and issue was joined on the said plea. The issue was tried by a jury, which, on the 3d day of June 1873, found a verdict in these words: "We, the jury, find for the plaintiff, and assess his damages at eighteen hundred and eighty-five dollars and eighty-six cents, with legal interest thereon from December 16th, 1872, till paid." Whereupon the defendant moved the court to set aside the verdict and grant a new trial, upon the ground that the verdict was trary to the law and the evidence in the cause; which motion was overruled, and judgment was thereupon rendered according to the verdict.

con

Two bills of exceptions were taken by the defendants to certain rulings of the court in

the progress of the trial, and were made 325 a part of the record. One *related to

the instructions which were given or refused by the court to the jury, and the other to the ruling of the court in regard to the motion to set aside the verdict and grant a new trial. In the former, so much of the evidence was set out as was deemed to be necessary or proper to show the relevancy of the instructions. In the latter, is contained a certificate purporting to be of all the facts which were proved on the trial. That certificate is in substance as follows:

"The court certifies that after the jury were sworn to try the issue joined in this cause, the following facts were proven before the jury on the part of the plaintiff, viz: That the vessel of the plaintiff's decedent, Wm. Applegarth, called the North Carolina, which was in thorough order and repair, and of the value of $3,500 or $4,000, arrived at Petersburg about two o'clock A. M. of 15th October 1872, with a cargo of 131 tons of coal, consigned to Marks & Friend, of that city. That she was not able to get to their wharf, in consequence of he river being blockaded by a dredging machine lying alongside the steam

E. H. Stainback, the port warden of the city of Petersburg, directed him to haul his vessel about another length astern, as there was an obstruction or something else in the way, but what was not recollected, and that after the sinking of the North Carolina witness reminded Stainbeck of it; but it was also proved by the defendant that that pile was at a different place from the one where the North Carolina was sunk; that after the sinking of the North Carolina, some two or three inches of a stob under the water, and about two feet from the wharf, was seen by a witness, but the size of the stob, or whether it entered the vessel or not, could not be seen, and that the stob was five or six feet from the guards of the vessel, and that the stob seen under the water was an oak pile and inclined outward from the wharf. And it was further proved, that on the 25th day of October 1872, whilst the said vessel was being raised, the late William Applegarth addressed and caused to be delivered to E. H. Stainback, port warden of said city, and to Franklin Wood, the mayor thereof, true copies of a notice which is in the words and figures following to wit: To the Hon. Franklin Wood, mayor of the city of Petersburg: Dear Sir:-This letter will inform you, and through you the city of Petersburg, that I shall hold said city responsible for all damages which I have sustained or shall sustain by reason of the sinking of *my schooner the 'North Carolina' and her cargo (one hundred and five tons of coal), whilst lawfully lying at the wharf of said city known as 'the city wharf,' on the 15th day of October 1872. Said sinking was caused by the carelessness and negligence of said city. I am now engaged in raising said vessel and her cargo, and will be glad to have from said city whatever assistance she may render. Very respectfully, yours, Wm. Applegarth, by Jones & Bernard, his attorneys.'

328

er Fanny Lehr, at the wharf rented by the Powhatan Steamboat Company from the city, and made fast to another wharf of the defendant, below, known as the city wharf. That next morning, 15th October 1872, the tide being low, she could not get up to Marks & Friend's wharf; and while waiting for the next high tide, Marks & Friend sold the coal to B. S. Burch, with the understanding that Burch was to send a tug at the next high water to tow her down the river; but Burch failing to do so, and the captain of the vessel, concluding not to wait, commenced, about three o'clock P. M. of 15th October 1872, to haul up to Marks & Friend's wharf, and had proceeded in that direction about twenty feet, perhaps half the length of the whole 326 vessel, which is eighty-six feet long, when he received a message from Burch that he would tow her down on the next high water, which would be about two o'clock A. M. That the vessel was immediately made fast to the city wharf, where she sunk on the next low water, about nine o'clock P. M., from a pile going through her bottom. And that on discovering that she was leaking, which was about twenty minutes to nine o'clock, her pumps were started, but she sunk in about twenty minutes. That every effort was made by the captain and crew to save the vessel and cargo and prevent their sinking, and every proper effort made to raise the vessel and cargo and repair the injuries done to the vessel by the sinking as quickly and cheaply as the same could be done. That the actual and necessary costs of raising and repairing the vessel was $1,235.86, and the actual and proper amount of demurrage was $650. That neither the captain nor owner of the vessel paid any wharfage, but they were liable to pay wharfage under the city ordinance. That she was sunken by an oak pile through her bottom, which was sawed off by divers about eighteen inches or two feet from the bottom of the "And the court further certifies that the deriver, and the divers traced the pile, by feeling, fendant, to maintain the issue on his part, about eighteen inches or two feet in the sand, proved the following facts, viz: That when and that the inclination was from the wharf, the wharf of the defendant at which the and that the pile entered the vessel about North Carolina was sunken was built, all its nine or ten feet from the keel and about fender piles were oak, and all the piles on five feet from her main mast, and that an old which the string timbers rested were pine. piece of log lying between the pile and the That the fender piles were placed about wharf, about three feet long and eight inches thirty feet apart, and are there still and none in diameter, was pulled out by them; that of them missing, and that the fender the pile that entered the vessel inclined in piles are all visible at high water, and that the direction of the opposite side of the river, the oak pile on which the vessel sunk is and was an oak pile, and in the opinion of smaller and not like the fender piles at said an expert was a fender pile, or part of the wharf. That some time between 20th and city wharf, and that from where the pile 30th September 1872, that part of the river entered the vessel to the wharf was about along the whole length of the city wharf at two and a half feet; that the pile which the North Carolina sunk, had been 327 *that entered the vessel was visible at dredged to within about two feet of said low tide that the river appeared to have wharf; and that the reason why it was not been dredged not nearer than two feet dredged nearer the wharf was for fear said from the city wharf, but did not appear wharf might be undermined and caused to to have been dredged level, but in holes, and fall; and that it was more than probable if the dredging on the outside of the pile would the pile on which the North Carolina sunk have caused it to incline outwards; that about had been there when the dredging was done, two three when years ago, one of the shovel of the dredge would have struck the plaintiff's witnesses named Brown was it; that one of the witnesses was a member at Petersburg, in command of another vessel, of the board of directors of the Lower Appo

or

331

mattox company, whose president and di- shall deem necessary or proper to ensure the i rectors are appointed by the common council proper performance of their several duties. of the city of Petersburg. and that the said All officers so appointed may be removed city, for the last three years, has furnished from office at the pleasure of the common the money to open and keep open council; and unless their terms of office be 329 *the Appomattox river; but that since otherwise fixed by ordinance, they shall be December 1871, the United States gov- considered as holding their respective offices ernment has had charge of the river, and at the pleasure of the common council. commenced operations in opening and cleaning "Section 30, page 11, city charter: out; that the dredging aforesaid, between 20th and 30th September 1872, was made by said witness under contract with the Lower Appomattox company; that he had no orders to dredge the river regularly; but when he did so, it was under a special contract with the Lower Appomattox company, and that under a like contract he dredged out another vessel that was sunk in the river at a different point between the first and latter part of October 1872; that the pile which sunk the North Carolina did not resemble the fender piles of said city wharf; that about eight or ten days before the sinking of the North Carolina, a three-masted schooner lay near the same spot of the sinking, but received no injury as far as known; that timbers often floated down the river from above; that during the late war the Confederate government built two bridges across the river, not far from the city wharf, at which bridge oak piles were driven down.

"It was also proved that E. H. Stainback was the port warden of the city of Petersburg since 1865, and that the conversation which took place two or three years ago, as proved by the plaintiff's witness Brown, between him and E. H. Stainback, the port warden of Petersburg, occurred in November 1870, and the obstruction referred to by the witness Brown was reported to the Lower Ap pomattox company with directions to have it taken out, and it was never seen there afterwards by the port warden; that demand was made by the city for wharfage of the captain or officers of the North Carolina, because she had no cargo 330 *to be landed there, and it was not the custom of the port warden to claim wharfage in such cases."

no

The foregoing are all the facts certified in the second bill of exceptions. In the first, besides the other evidence therein set forth, it is stated that "the plaintiff further gave in evidence section 20, page 8, and section 30, page 11, of the charter, and chapter 16 of the printed ordinances of the city of Petersburg, in the words and figures following, to wit:

"Section 20, page 8, city charter:

"20. The common council shall have authority to provide by ordinance for the appointment of such officers as shall be necessary or proper to carry into full effect any authority, power, capacity or jurisdiction which is or shall be vested in the said city, or in the common council, or in the mayor or aldermen thereof, except as hereinafter provided for; to grant to the officers so appointed the powers necessary and proper for the purposes above mentioned; to define their duties, to fix their terms of office, to allow them reasonable fees and compensation, and to require and take of all or any of them such bonds, obligations or other writings as they

!

"30. It shall be lawful for the common council to *establish and construct landings, wharves and docks, on any ground which does or shall belong to the said city, and to repair, alter or remove any landbe so constructed, and to lay and collect a ing, wharf, or dock which has been, or shall reasonable duty on the vessels coming to and using the same; and they shall have power to pass and inforce such ordinances as shall be proper to keep the same in good order and the same, as well as at all other wharves and repair; to preserve peace and good order at landings in said city, and to regulate the manhave power also to appoint as many port ner in which they shall be used. They shall wardens for the port of said city as may appear necessary; to prescribe their duties, fix their fees, and make all regulations in respect to such officers, as to them may seem expedient.

"CHAPTER XVI.-Concerning the city wharf.

for every twenty-four hours that they may lie "§ 1. Vessels lying at the city wharf shall there, pay two cents per ton, one half of which shall be retained by the port warden, in full for his services. If any such vessel shall remain at said wharf a less time than twentyfour hours, her master or owner shall pay the same rates as for twenty-four hours.

"§ 2. If any master or owner of any such vessel shall refuse or neglect to pay the said rates on application by the port warden, he shall be liable to pay double the said rates.

332

"§ 3. It shall be the duty of the port warden to remove obstructions to the navigation of the river within the city. If any master or owner of a vessel throw ballast overboard in any part of the river within the city, or suffer it to be done, he shall forfeit ten dollars *for every such offence. If any vessel, boat or lighter be sunk in any part of the river within the city, the owner or master thereof shall remove the same within thirty days after notice from the port warden so to do. If he fails SO to do, the port warden shall cause the same to be done, and draw on the chamberlain for the expense, retaining possession of the vessel. If the expense be not refunded, with ten per cent. damages, within ten days after such removal, the port warden shall sell the vessel at public auction, and out of the proceeds of sale shall refund the said expenses, with ten per cent. damages, and shall pay the balance to such master or owner. If the proceeds of sale be not sufficient to pay the said expenses, and ten per cent. damages, the chamberlain may recover the residue from the owner or master of such vessel. If the port warden shall fail to perform any duty hereby required

113