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June 27, 1934


The opinion of the court was delivered by: KIRKPATRICK

The Standard Oil Company, the defendant, is an owner of land with riparian frontage on the Schuylkill river within the limits of the city of Philadelphia. That city, acting under authorization given to it by a statute of the state of Pennsylvania enacted in 1913 (Act July 22, 1913, P.L. 911 [53 PS Pa. § 4351]), has built a retaining structure variously called a bulkhead or mud fence, consisting of sheet piling of a substantial and permanent character, approximately along the low-water mark in front of the defendant's property. It is part of a structure or series of such structures extending along the river on both sides for a distance of some 5 miles, the entire work being for the improvement of navigation. This suit was brought under the statute referred to for the recovery of $107,507.89, representing the cost of a portion of the structure, together with a statutory penalty for its use. Jury trial was waived and the case tried to the court.

The statute provides that no riparian owner shall use the contemplated retaining structure "for the purpose of constructing, extending, altering, improving or repairing, any wharf, or other building in the nature of a wharf, or other harbor structure, or for other wharf purposes" without paying the cost of so much of it as is so used, and a further per diem penalty is provided for such use without paying. The city's claim is based upon the alleged use, for wharf purposes, by the defendant of 895 feet 10 inches of the mud fence. The defendant admits that it has so used two portions, totaling 95 feet 8 inches in length, and has tendered the cost of the same amounting to $11,249.22. As to the balance, the controversy arises as follows: The defendant has constructed two wooden wharves on piling and has incorporated a length of the mud fence into each of them as its shoreward support. These are the two portions which the defendant admits using and which it is willing to pay for. The two wharves extend into the river 20 feet, are protected by a line of dolphins located just inside the harbor line established by the government, and are connected with the shore by runways. The water in front of these wharves was not deep enough to float the vessels which it was anticipated would be brought to them, so the defendant proceeded to dredge the river bottom in front of its property for a distance of 895 feet 10 inches, in part to a depth of 30 feet (in front of the large, or steamer wharf) and in part to a depth of 12 feet (in front of the small, or barge wharf), the entire basin thus made being wide enough to accommodate good sized vessels and extending not only in front of both wharves but also along the mud fence above and below them.

 The city contends that this ship basin or slip could not be maintained without the aid of the mud fence which, it says, keeps the shore from sloughing or silting into it, and that therefore the defendant is using for wharf purposes all that part of the structure which lies to the shoreward of the ship basin. If this is true, liability under the statute for the cost and penalty would follow.

 The defendant's position is:

 First, that the mud fence is of no value whatever in maintaining its ship basin and that therefore it does not use it at all.

 Second, that even if it is an aid and is being used, the use is not for wharf purposes within the meaning of the statute.

 Third, that if construed to cover such a use, the statute would be unconstitutional, because the result would be to impose upon the defendant, as an individual, the cost of a general public improvement, or would amount to the taking of its property without compensation.

 Upon the fact issue, I find that the mud fence in front of the defendant's property does act substantially (though precisely to what extent I cannot determine) to prevent the muddy banks of the river from sloughing off into the dredged ship basin.It would, no doubt, be physically possible to maintain the ship basin without it, but it would require more frequent dredging and might make the cost prohibitive. In addition, if there were no fence there, the defendant would have to cut its shore further back in order to counteract the tendency of the mud to slide into the basin, by getting a more stable angle of repose for it. On the whole, I find, therefore, that the defendant is making use of the mud fence along the entire length of the ship basin.

 The important question in the case thus becomes the construction to be given to the words "for other wharf purposes," in the statute which authorizes the work and fixes liability for the cost. A careful reading of the statute in the light of the circumstances, the rules of statutory construction and the consequences of a different interpretation have convinced me that the protection of dredged basins for ships was not contemplated by the statute as a use of the mud fence which would impose its cost upon the owner.

 It will be noted that, preceding these general words, a number of special uses are referred to all of which seem clearly to contemplate the physical incorporation of the mud fence into a structure, or at any rate its use in direct physical relation to something which is built upon the land ("any wharf, or other building in the nature of a wharf, or other harbor structure") rather than to the mere dredged river bottom. If the words "for wharf purposes" stood alone, it would certainly be a very close question because, while the word "wharf" strictly means a structure, it does necessarily involve the idea of a structure adjacent to water, and it may be that it also involves the idea that the water must be deep enough to float ships of sufficient draft to make it commercially useful. On the other hand, the doctrine of ejusdem generis is a major rule of construction generally followed except where it will defeat or hinder the plain purpose of the Legislature.

 Parenthetically, it seems entirely likely that what the Legislature and the city had in mind in undertaking this improvement was a series of substantial docks which would ultimately extend for its entire length and which would necessarily include the mud fence as part of their physical structure, thus ultimately providing for the cost of the whole. If this is so, the building of the small light type of wharf which the defendant has constructed partially defeats the general scheme. Probably such use was not foreseen, but the practical working out of the plan has nothing to do with the Legislature's intention at the time of the enactment.

 The title of the act of 1913, in which is recited the title of the original act to which it is a supplement, contains in that recital a catalogue of uses which includes not only wharves, piers, bulkheads, and docks, but also slips and basins thus showing, at least, a legislative consciousness of slips and basins as a distinct and different facility from wharves, and suggesting that when the words "wharf purposes" were used, the thing in mind was the structure and not the structure in combination with a required depth of water.

 It is also necessary to consider the effect of the construction for which the city contends, because, in cases of doubtful interpretation, a construction which would result in the ...

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