;Yon, L. E.& W. R. Co. v. TREI;,L.
COiJrcuit O(J1J,'1't, B. D.
York· . March 25, 1889;)
WHARVES-RIGHT TO StlRROUNDlNG WATER.
Thefact·that a ferry-boat lays such a· usual course 6S to bring her 'Yithi.n 10 or 20 feet of the COrner ofa pier. not itself the boundary of hetsllp, ·hligging it as closely as she can, does not give any superior right to so much of the water around the pier as may be required for the uses for which was erected.
The Fa'OOrtta, 8 Blatchf. The John Oooker, 10 Ben; 488: The bfa, 8 Fed .. Rep. 716, 25 Fed. Rep. 844; The Monticello, 15 Fed. Hep. 474: M(;Farlanilv.Lead 00.· 17 Fed. Rep. 253; TheFa'nWood, 28 Fed. Rep:. 874; The Delaware, 6 Fed. Rep. 195: The Sigel, 6 Ben. MO, 14·Blatchf. 482:/The Pavonia, 26 Eed. Rep. no; TkeManhasset, 34 Fed. Rep. 42:l;Fay's Oaae, 15 Pick. 253; The Alabama, 1 Ben. 483; l.'he Ariadne, 7 Blatchf. 212;;Xhl:! Mary Wflder. Taney. 567; The Farragut, 10 .rke A;riadne. III
Wall. 470. . .' .
dividing tbe damages. The John S. Darcy, 29 Fed. Rep. 644. E. D. McCarthy, for the 1. L. Fisber, cited: .,
Appeals by both vessels iromdecreeof district court under
1'ke Pavonia, 26 Fed. Rep.nQ; The O. H. Beuff. a2 Fe4.Rep.237;'/'helJ'refi State, 91 l;!, The 9alatea, 92 U. S. 439; The .Ferr.y.Boq,t. Relief. 01· cott,104;T!li l!'avorlta. ll:l.Wall. 598; Fed: Rep. 416; The EdwinH. WeMter; 22 Fed·.Rep. In; The Ottawa. 8 Wall;:268; St; John vl Paine, to Bow.' 563: The Genesee Ohief. 12 How.·443: 1!aru!y v. Packet 00.,23 How. 287; The Ariadne, 13 Wall.475:TheO'tllofParl.,,·9. Wan: 634; The Ant; 10 Fed. Rep. 294; Tke B. B. Saunder8. 25 Fed. Rep. 729: (J()slee v 18.1I0W,. 463·
,Adams, for th.e .tobn S. Darcy, cited: ·. :,
in .fault iaaffirmed. Such affirfUallce, however,is not an assent toihe proposition that the ferry·boats .I!>t· street "theexolusive use oftbe clearwater about 108 widtb, the Twenty.Second street pier and the lO'Yer !erry-rack; 1 The fMt that afetry-boat lays such an "ordinary and usual course" l;lS will bring bel' within 10 to 20 feet of the corner of a pier, boundary of her slip, "bugging it as closely as she can," (as, the wit:nesses put it,) is not sufficient to give any exclusive or superior rights to the of so much of t.he water area surrounding the pier as lIlaY, be required for the uses to subserve which it wa,s erected. TM. MC4T'!J Po-weU, 86lr-ed.. Rep; 598.
J. ,The decision of tbe district judge' holdingbQth,vE!S!!el1J
No. 3. 1 No.3.
HOGG 17. THE PENNSY,LVANlA ANNEX
(Oircuit Oourt, E.
New 'Fork. March 8, 18&9.)
ADHIRAI.,TY-I'RAoTICE-MOTtON FOR NEW TRIAL.
'A motion for a new trial in an admiralty cause in this court comes too late if made after the term in which the,final decree was entered
. In Admiralty. On motion for new trial. 35 Fed. Rep. 560. Evarts, Clwate &: Beaman, for libelant and appellant. , , .Goodrich, Deady &: Goodrich and R. D. Benedict, for claimant and appellee.
J. In this case a ,decree dismissing the libelwas enfered on the' 20th of July, 1888. ' On the 28th of July, 1888, and same term at which the decree was entered, affidavits made by William J.Da1ton, Andrew Clemens, and Treadwell Cleveland,were presented to me, and on them I made an order that the claimant show October 1,1888, why the decree should not be vacated, and a hew trial had, 'and why the libelant should not have leave to take the testimony of Dalton and Clemens as to the facts set forth in their said affidavits, and such other and further testimony as he might be advised, for u'se oll'suchnew trial.·· Further affidavits were served by the libel.antfor use', on the motion so pending. In- response to the order the appeared, affidavits, were put in by the claimant, affidavits in I'eply by: the Hbelant, and reputting affidavits again by the The Il).otion was fully heard;byme on oral argument in December, 1888, and I have 81llcebeen furnished with full written briefs by both parties. At the close of the oral argument I distinctlyintiniated my view that the motion could not be granted. On a careful review of the case, I :Qfustill'of that' opinion.' Thie briefs! submitted to me cover notably the questions raised by the special affidavits' furnished by the libelant for' the ID()tion, hut to some extent other questions on the merits involved in the hearing which resulted in the decree. I have carefully reviewed 'the whole casEt, 'and am still onhe opinion announced by me in my deelsl'on'herein, filed July 5; (35 Fed. Rep. 56'0,) "that the libelant 'bas not established by sufficient proof the allegation of the libel that the steani-boat or ferry-boat known as the' Pennsylvania Annex Boat 'No,'3,' on the occasion mentioned ,in the libel, ran into and upon the steam.:.ship; mentioned in the libel, and then called the l Western Texas,' \i.rtd'caused damage and injury to her." . ,On the 5th of February, 1889, and after I, had been furnished with the papers and briefs on the motion above mentioned, the libelant presented to me certain affidavits, namely, that of William F. Ward, sworn
lReported by Edward G. Benedict, Esq., of the New York bar.