Alexander County IL Archives History - Books .....Chapter X The Wharf And Wharfage 1910 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/il/ilfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Joy Fisher sdgenweb@yahoo.com September 19, 2007, 1:58 am Book Title: A History Of The City Of Cairo Illiniois CHAPTER X THE WHARF AND WHARFAGE-RIPARIAN RIGHTS THE paved wharf as it now exists extends from the south line of 4th Street to the north line of 8th Street, a distance of ten hundred and eighty (1080) feet. The paved face of it extends nearly to low-water mark on an angle of about eleven degrees to the plane or level of Ohio Street adjoining; and the distance from the street line to the paving at or near low-water mark is about two hundred and ten (210) feet. There are, therefore, about 24,000 square yards in its surface or about five acres or as much as two of our largest city blocks. Looking at the wharf now and at the river bank above and below it, we can easily see what the river landing was prior to the construction of the wharf, which was begun in the year 1857. Prior to that time and for thirty years, the flatboats, keelboats, and other like water-craft, and the steamboats, wharfboats, barges, &c., had to land at and be tied up to the bank, and there were, therefore, the most primitive and temporary means for loading and unloading and caring for passengers and freights. Hence, arose at a very early day in Cairo's history, the question of the ownership of the river banks or shores, and of the right of the owners to collect wharfage or dues for the privilege of landing and tying up to the shore for a greater or shorter time. The collection of wharfage seems to have begun as far back as 1843, possibly earlier. By the act of February 17, 1841, the Cairo City and Canal Company had been vested with all the powers of the City of Quincy; and on the 23d day of May, 1843, the Company passed an ordinance providing for the collection of such dues, a photograph copy of which, signed by D. B. Holbrook, is given on another page. At this time the town had fully entered upon its decline. No more funds were to come from England, nor were they expected to come from American sources; and it may be that this ordinance had its origin in the hope that some small amounts might be obtained from water-craft, which would enable the landed proprietors to hold out a while longer, or until substantial aid came from other quarters, or until they could sell out the whole enterprise. So far as we know, the ordinance probably had little other effect than to prejudice still further the growing river interests against the town. Very soon after Col. Taylor's arrival here in 1851, the matter of collecting wharfage dues was again taken up; and the Trustees, whom he represented, were proceeding to make these dues an important source of their needed revenues. Many of the leading people of the town believed the Ohio River shore or wharf, such as it was, belonged to the public and that the Trustees had no legal right to claim, the same or to charge or to collect wharfage dues thereat. They seem to have claimed, first, that the title of the Trustees did not extend further than high-water mark, and, second, that the Trustees and their predecessors had dedicated the wharf and landing to the public by doing this and that, and especially by the making of maps and plats showing the river front and other places in the city to be public grounds and property. The city, or that which we have called a city all the time, became incorporated as a town in March, 1855; and on the 27th day of March and the 2d day of April, 1855, the trustees of the town passed two ordinances, the one imposing a fine of $50.00 a day for maintaining at the landing any wharfboat, flatboat, storeboat, floating dock, flat, barge, keelboat, or other water-craft, without license or permission from the city, and the other, a fine of $75.00 for making sales on such boats or keeping hotels thereon. On the i6th day of April, 1855, Solomon Littlefield and Samuel Wilson, the latter of whom is well remembered by scores of our citizens, filed their bill in chancery in the circuit court of the county at Thebes against the said town trustees, who were Samuel Staats Taylor, Bryan Shannessy, Peter Stapleton, Louis W. Young, Moses B. Harrell, and Robert Baird, constable, to enjoin them from enforcing the said ordinances. The injunction was issued, and the case came up for a hearing on demurrer by the trustees, before Judge William H. Parrish, the circuit judge of our county at that time, and said to have been a very able man and judge. William A. Denning, before that time one of the judges of our supreme court, was the attorney for Littlefield and Wilson, and John Dougherty and Cyrus G. Simons, the attorneys for the town and its trustees. Among the papers in this chancery suit are printed copies of those two ordinances and of two others dated March 3ist and April 4, 1855. The four ordinances are signed or attested by Edward Willett as clerk. Judge Parrish seems to have disposed of the suit in rather short order, and held that Little-field and Wilson had not stated a case entitling them to any relief, and dismissed their bill. The town trustees elected March 10, 1856, seem to have differed widely from those of the preceding year. They were Thomas Wilson, Cullen D. Finch, McGuire Phillips, Samuel S. Taylor and Charles Thrupp. The judges of the election were Bryan Shannessy, Robert H. Cunningham, and Edward Willett, and the clerks Henry H. Candee and John Q. Harmon. The election was by ballot and not by viva voce votes, and hence there was probably more freedom in voting than at the election the year before. The issue seems to have been the same as that made in the Littlefield and Wilson suit, and the election must have gone in favor of what they represented, although they had lost in the circuit court. This new board of trustees had a strange habit, as Col. Taylor says, of frequently holding meetings without notifying him. On the 24th day of May, 1856, they passed an ordinance aimed at Col. Taylor's Trustees, just as the former board had passed the two ordinances of March and April, 1855, which seemed aimed at certain citizens who had wharf boats at the landing. Under this ordinance, just mentioned, George D. Gordon, whom a few of our citizens well remember, was appointed wharfmaster and was to collect the wharfage dues. Under the ordinance and the efforts made to enforce it, a confused state of things arose. Gordon was able to collect only about $400.00 of wharfage during his term of service, during which time as much as $8000.00 in dues had accrued, almost all of which was lost both to the city and the Trustees. The Trustees, to defeat the attempt of the town trustees to enforce this ordinance of May 24, 1856, obtained an injunction against them in the United States Circuit Court at Springfield. This suit was no doubt still pending when the first election came on March 7, 1857, under the city charter of February II, 1857, and which resulted in the election of Col. Taylor as mayor and the following named aldermen: Peter Stapleton, Peter Neff, Patrick Burke, Rodger Finn, John Howley, Henry Whitcamp, Christopher M. Osterloh, Martin Egan, Timothy N. Gaffney, C. A. Whaley, William Standing and Cornelius Manley. Quite a majority of these aldermen seem to have been favorable to Col. Taylor and the policy of the Trustees, and they lost no time in wholly undoing what the last Board of Town Trustees had done regarding wharfage, for on March nth, four days after their election, they repealed all ordinances relating to wharfage, and thus ousted the wharfmaster, George D. Gordon. At this election Mr. Henry H. Candee was chosen city treasurer and John Q. Harmon clerk. March gth, they were directed to demand of the town trustees all books and records of every kind and all moneys and funds, belonging to the town government. Whatever became of the books and records of the former town government I do not know. I have seen no record indicating anything concerning them. Whatever, also, became of the suit in the Federal court to enjoin the town trustees of 1856, we do not know, but we find that within a few weeks after the voters of the city had substituted David J. Baker as mayor in place of Col. Taylor, another ordinance was passed by the council to take charge of the wharf or of the collection of wharfage. Following the passage of this ordinance, Fredolin Bross brought a suit against the Trustees to obtain an enforcement of the contracts of June n, 1851, and of May 31, 1855, between the Trustees and the Illinois Central Railroad Company. (We have referred elsewhere to this suit of Judge Bross.) In the report of the Trustees to the shareholders, September 29, 1864, we find these references to this Bross suit and to the ordinance last mentioned: In May last, a bill was filed in Chancery, by F. Bross, who purchased a lot, in 1856, from the Trustees, praying the court to compel the performance, by the Trustees, of the contract entered into by them with the lot purchasers, as he claims, to build the levees provided for by the first agreement between the late Trustees and the Illinois Central Railroad Company. Our counsel are of the opinion, that there is no good ground for any such claim or suit. The case will be removed, at the proper time, from the local court in which it was instituted, into the United States Court, at Springfield. In April last, the City Council of the City of Cairo passed an ordinance providing for the appointment of a Wharf Master, and the collection of wharfage at our levee wharf. The Trustees immediately restrained the operation of this ordinance by an injunction, issued out of the United States Court. The injunction was granted about three weeks before a regular term of the court, at which it would have been proper for the City to ask for a dissolution of the injunction. But at the time of granting it, the counsel for the City asked for time beyond the term of the court to answer the bill upon which the injunction was founded, and then, July 1st, asked for further time, until October 1st, to make this answer. The only foundation that the Trustees are aware of for the claim advanced by the City for the wharf, is set forth in a resolution adopted at a citizens' meeting, in July, 1863, of which the following is a copy, viz.: That as the Ohio and Mississippi rivers are public commercial highways, and the landing at this city a public landing, that can only be controlled and regulated by the public, or those authorized by the Legislature of the State; therefore, the authority claimed and exercised by the Trustees of the Cairo City Property, in the collection of wharfage, etc., is a gross violation of the rights of the City, a fraud upon the city treasury and an usurpation of power. Our counsel have not a doubt of the ability of the Trustees to maintain their right to the wharf, and to defeat the City in its pretended claim. In this Springfield suit, brought by the Trustees in April, 1864, there was filed as an exhibit to Col. Taylor's deposition, a large map or plat of the City of Cairo, made by William Strickland, architect and engineer, and Richard C. Taylor, engineer and geologist, probably in 1838, to which exhibit was attached the following affidavit, subscribed and sworn to before John W. Ash, Notary Public at Alton, February 22, 1866. "My name is Miles A. Gilbert. My age is 56 and my present residence is in Saint Mary, state of Missouri. I moved to Cairo, Illinois, in the year 1843, and took possession and charge of all the property there belonging to the Cairo City and Canal Company, acting as their agent up to June, 1846, the time the property was transferred to the Trustees, Thomas S. Taylor and Charles Davis. From that period, I acted as agent for said Trustees up to April 18, 1851, the time S. Staats Taylor, Esqr., came and took charge of the trust. I resided at Cairo from 1843 to the latter part of 1846; from 1846 till 1851 was at Cairo a considerable portion of the time. During the aforesaid periods, as agent, I exercised control and authority over the high river bank and strips of land lying between Levee Street in the City of Cairo and the Ohio River, and during the whole time made and asserted continuous public and notorious claim to said ground. As agent had notices stuck up in several of the most public places in Cairo, requiring trading, boarding, family and flat boats and other similar water craft landing at or moored to the shore to pay wharfage. In some cases I collected wharfage and in others remitted it when business was dull and they could not afford to pay. As agent I pointed out places for trading boats, flat boats and other water craft to land at and use for the time being. Also pointed out a certain location to be used especially for steamboats to land at, and often, when trading boats and flat boats would land at the place, assigned for steamboats I required such trading and flat boats to remove to some other place, which I pointed out, they usually doing so without trouble. I frequently employed men to clear off logs, drift wood and other obstructions lodged on the levee, and generally during the entire period spoken of exercised exclusive control and ownership over the entire river bank and levee at Cairo, from the confluence of the Ohio and Mississippi rivers for about three miles up the Ohio. "I was one of the incorporators and also a director of the Cairo City and Canal Company from its inception, during the entire period of its existence and was familiar with its operations. I was and am familiar with the map made by Mr. William Strickland, the engineer of that company. He never made but one plan and no plat. The plan accompanied a report made by him to the company in 1838 and was made to illustrate his recommendations as to the best method of building a city and improving and developing the property at Cairo. This report was printed and the map was engraved on different scales and some attached to the printed reports. I hereto annex one of the plans and reports marked Exhibit Y; also one of the plans on a large scale marked Exhibit X. This plan was never adopted by the company as a plat of the city; the city was never laid out according to it; no survey was made by authority of the company under it, and no lots sold under it. It was a sketch of a proposed plan for a city, to be adopted or not as the company might thereafter determine. MILES A. GILBERT." This suit also seems to have determined nothing, for Col. Taylor, with the aid of certain influential friends here, prevailed upon the city council to withdraw its defense to the suit. This action of the council only put off the day of the decision of the question; for it came up again in the quo warranto suit brought in the name of The People on the relation of John W. Trover against Marmaduke S. Ensminger, wharf-master, in 1868. This suit finally settled the question of the right of the Trustees, as riparian owners, to the wharf and to collect wharfage, after the matter had been pending in one form or another since 1855. This ruling of our supreme court in the Ensminger case was, by the Supreme Court of the United States in Barney vs. Keokuk, 94 U. S. 384, held applicable only in those States where it had become a rule of property or where the restrictions of the riparian owner to high-water mark would be an interference with vested rights. With the exception of certain river frontage or lands fronting on the one or the other of the two rivers which have been sold, the Trustees must be now regarded as the owners of all the river frontage on the rivers. Their titles extend on the west, to the middle thread of the Mississippi, and on the east, to low-water mark on the Ohio. In the old city charter of February 11, 1857, the legislature extended the city's boundaries to the middle of the main channels of both rivers, but this it could not lawfully do as to the Ohio. See "The Ohio River as a Boundary" in a subsequent part of the book. Additional Comments: Extracted from: A HISTORY OF THE CITY OF CAIRO ILLINOIS BY JOHN M. LANSDEN WITH MAPS AND ILLUSTRATIONS CHICAGO R. R. DONNELLEY & SONS COMPANY 1910 COPYRIGHTED, 1910 BY JOHN M. LANSDEN The Lakeside Press R. R. DONNELLEY & SONS COMPANY CHICAGO File at: http://files.usgwarchives.net/il/alexander/history/1910/ahistory/chapterx124gms.txt This file has been created by a form at http://www.genrecords.org/ilfiles/ File size: 16.7 Kb