The New Orleans daily Democrat., 1878-06-21
THE WHARF QUESTION.
Judge Billings Decides the Case of Henry
Ellermann VS.. Charles Morgan.

No, 8276 Henry Ellermann and City Of New
Orleans VS.. Charles Morgan.-In this case
the city becomes q party merely for the pur-
pose Of sustaining the claim Of the plaintiff,
Henry Eliermann, and asserts no rights Of her
own. Independently Of his. 1t Is alleged in
substance in plaintiffs petition that Eller~
mann Is the subrogee to all the rights OF the
city in relation to wharveS, and the collection
of wharfage dues therefrom that the de-
fendant has taken possession OF portion Of
the shores Of the mississippi river and built
q wharf thereon, on the right bank OF the
river, and that he has used and allowed others
debted to the said Elermann, the plaintiff, as
subrogee Of the city, in the sum Of $4,000
and upwards, after deducting the estimated
cost OF building the wharf.
The answer OF the defendant Is a general
denial In connection with special defenSes set
ting up rights under the franchises of the
0pelousas Railroad Company, which he aC-
quired by purchase
The questions which are sought to be pre-
sented here are complicated; at the threshold
of the inquiry into the case 1t must be de-
termined whether under the lease by which
Ellermann claims he can maintain this suit
1t Is clear from the language OF the Ordl-
nance authorizing the lease that the wharf In
controversy was not In the contemplation of
either party to the lease at the time it was
executed Section II Of the ordinance No. 1921,
May 10, 1875, page II OF the printed pamphlet
marked A, provides
THAT the transferee shall not be required
to take charge Of the levees except In the
First, Second, Third and Fourth Districts Of
the city, but that the said trhnsferee shall not
be entitled to receive any revenue from ves-
sells landing In the other districts until after
the wharves shall have been built and the
transferee shall have complied with the re-
quirements Of this ordinance in relation to
them"
Section 10 (p. III provides that the person
to whom shall be transferred the revenues
collectble as aforesaid shall accept and take
possession Of the wharves, landings and levees
contained within the limits hereinafter speci-
fled.
1t appears from the evidence that the wharf
in question is In neither Of the districts named
above; that 1t had been built anterior to the
date OF the leasr, and was in existence and in
use at the time the contract Of lease was en-
tered into. The city at that time never
claimed wharfage for It's use. It is located in
one of the excepted districts the Fifth, and
the lease, in restricting the right of Eller-
mann to the collection OF wharfage in certain
districts, makes no mention Of this It Is evil
dent that 1t was the intention of the parties to
this lease that his right to the collection of
wharfage in the other districts, including the
locality in which this wharf is Situated, should
be restricted to such wharves as might there
after be built.
The court, therefore finds as a conclusion
Of law that under the lease the lessee, Henry
Ellermann, cannot maintain this action to re-
cover the wharfage.
1t is not the intention Of the court to ex-
press or intimate any opinion upon the merits
Of the case as to the rights Of the city over the
wharf in question.
Let there be judgment for the defendant, as
In case of non-Suit.