Hardy v. McCullough

Citations

• 23 Va. 251

Syllabus

<p>1. ,S. and others were the owners of two wharves and a small dock between them, fronting on Elizabeth river at Norfolk ; which dock was used in connection with both wharves. In 1851 they sold to W. the eastern wharf with its appurtenances, with geneial warranty, making the logging on the west line of the dock the boundary; and in their deed they covenant to allow W. to have the common use with themselves or their tenants of the said dock for the purpose of landing goods on his wharf from vessels or boats which may enter therein, as long as the said dock and adjoining premises are owned by them, or until they may choose to fill up the dock. W. in consideration thereof, hereby undertaking to clean out from time to time, the said dock at his own expense. In March 1854 they sell the other wharf and the dock to B. Held:</p> <p>1. If there had been no special covenant for the use of the the dock by W. the right to use it in connection with and for the benefit of the wharf, as it had been openly used by the grantors, would have passed to the grantee by implication of law, as an easement, or as part of the property granted.</p> <p>2. But in the face of the express contract for the use of the dock, no implication or presumption of law in favor of a different or more extended use of the dock can arise.</p> <p>3. The wharves were originally built out into Elizabeth river, and the tide ebbs and flows into the dock; but they are within the portwarden line, a line drawn along the channel of Elizabeth river, under an act of the General Assembly ; and they were built so long since that no persons living have any knowledge of the time when they were built, and they have always been held as private property: Held :</p> <p>1 Quaere: If any title which the Commonwealth might at an earlier period have asserted to this dock, if not exjn'essly surrendered, has not been, by an almost irresistible implication, waived and abandoned in favor of those claiming to be the owners thereof.</p>