ALLNUTT v. INGLIS 12 East, 527. 1810.1 THE plaintiffs' declaration stated in part that they imported into the port of London 40 pipes of wine, being goods which might by the statute be secured in defendant's warehouse without the duties due being first paid, and did all things necessary to legalize the lodging of said goods in defendant's warehouse, and demanded that the defendant receive them for reasonable hire and reward, and tendered the goods to the defendant, and were at all times ready and willing to pay such reasonable hire and reward, but that defendant refused to receive such goods into said warehouse, though there was sufficient vacant room for such goods, whereby the plaintiffs were injured by being required to advance the duties on such goods to the amount of £500. The plea of the defendant was to the effect that a table of charges for warehousing had been published, and that the plaintiffs refused to pay the amount set forth in such table, which was the reason for the refusal to accept the plaintiffs' goods. To this plea there was a general demurrer. Richardson for the plaintiff. The reasonableness of the hire and reward offered by the plaintiffs to the company for the privilege of warehousing their goods in its warehouses, without the immediate payment of the import duties, is admitted: and the question is whether the company were bound to receive the goods upon those terms. It is a general rule of law, that where a person has monopoly granted to him for public purposes, he is bound to render the service or use of the thing to which his privilege is annexed for a reasonable compensation. . . . Then under the warehousing act, 1 Facts: 3. def. def. marehous change any at likes the intent of the legislature was not merely to confer a benefit fee ... upon the London dock company, but to make them the instruments of a public benefit to the trade of London: and the company having accepted the monopoly cum onere, and knowing such to have been the intent of the legislature, they cannot now convert it into an engine to extort unreasonable rates. . . . If then the company did not mean to dedicate their warehouses to the public use in this manner, they ought to have made their stand in the first instance, and should have declined taking the certificate of the lords of the treasury, conferring the exclusive privilege, which issued with their own consent. And if this were otherwise, and the company could 1 Only the substance of the pleadings is here given, and parts of the arguments of counsel are omitted.- ED. refuse to receive the goods of the merchants except upon their own terms, the act would be for the benefit of the company, and not of trade in general, which it would rather encumber. Bosanquet, contra. Every person is entitled to make the best use of his own property, and the only exception to the rule is in cases where the owner has so entirely dedicated the use of it to the public, that he cannot resume the exclusive possession of it again; as in the instance of a highway, or ferry. So if one accept a grant from the crown of land on the sea shore or on the bank of a navigable river, in a public port, for the purpose of erecting a public wharf or quay, he cannot disuse it, but is bound to preserve it for its destined purpose. If a man open a public house, he cannot refuse to entertain travellers; if he set up as a public carrier he cannot refuse to carry: but he may limit his engagement with the public, and then he is not bound to admit travellers in the one case, or to carry goods in the other, upon any other terms than those upon which he engaged. [Ld. Ellenborough, C. J. It must be recollected that in those cases there is a power in the public of increasing the number of public houses or of carriers indefinitely.] The London Assurance Company, it is well known, contract at a premium rather higher than the ordinary rate of insurance. If this company had built counting houses instead of warehouses, might they not have let them for as much as they could get? [Lord Ellenborough, C. J. The business of insurance and of counting houses may be carried on elsewhere, and therefore such instances do not apply. The only question arises on the bonding act: shew us that wines may be bonded elsewhere.] There are in fact now other warehouses licensed for bonding wines besides those within the docks. [Lord Ellenborough, C. J. asked whether the London dock company were not themselves the occupiers of those other warehouses?] And it was admitted that they were: but it was insisted that as the crown is not restrained from licensing other warehouses, it cannot be considered as a monopoly in the company, so as to make the rule of law attach upon them. [Lord Ellenborough, C. J. If the privilege should be extended to other warehouses, it will only be a more extended monopoly in the company and in the owners of the other privileged places.] Richardson in reply was desired by the Court to consider how far the company was pledged to continue to apply its warehouses to this purpose; and also how far the crown was restrained from licensing other warehouses in other hands in the port of London for the same purpose. He denied that the company, having accepted of this privilege to their warehouses for the benefit of the public as well as of themselves, could throw them up at their own pleasure, without reasonable notice to the crown; for if so, the public might be deserted just at the moment of need, and after the merchants have committed themselves and incurred expence and risk upon the faith of the engagement between the crown and the company. It must be understood that when the company accepted the certificate conferring the exclusive privilege, they took it with all its burthens, and cannot withdraw from it: and while their term is running, the legislature declares that it shall be lawful for the importers, &c. of goods to warehouse them in the company's warehouses, without payment of the duties at the time, provided they are certified by the treasury; which has been done. But at any rate, supposing the company could withdraw their warehouses from this use, with or without notice, it is sufficient in this case that they have not done so; and while they in fact enjoy the monopoly, they must take it cum onere. Then supposing other outlying warehouses have been licensed, the argument is not varied against the company under whose control they are. And supposing others were also licensed, that would not destroy but only extend the monopoly. LORD ELLENBOROUGH, C. J. The question on this record is whether the London Dock Company have a right to insist upon receiving wines into their warehouses for a hire and reward arbitrary and at their will and pleasure, or whether they were bound to re-> ceive them there for a reasonable reward only. There is no doubt' that the general principle is favored both in law and justice, that every man may fix what price he pleases upon his own property or the use of it: but if, for a particular purpose, the public have a right to resort to his premises and make use of them, and he have a monopoly in them for that purpose, if he will take the benefit of that monopoly, he must as an equivalent perform the duty attached to it on reasonable terms. The question then is, whether circumstanced as this company is by the combination of the warehousing act with the act by which they were originally constituted, and with the actually existing state of things in the port of London, whereby they alone have the warehousing of these wines, they be not, according to the doctrine of Lord Hale, obliged to limit themselves to a reasonable compensation for such warehousing? And according to him, wherever the accident of time casts upon a party the benefit of having a legal monopoly of landing goods in a public port, as where he is the owner of the only wharf authorized to receive goods which happens to be built in a port newly erected, he is confined to take reasonable compensation only for the use of the wharf. Lord Hale puts the case either way; where the king or a subject have a public wharf to which all persons must come who come to that port to unlade their goods, either "because they are the wharfs only licensed by the queen, or because there is "no other wharf in that port, as it may fall out: in that case, (he "says) there cannot be taken arbitrary and excessive duties for cranage, wharfage, &c.: neither can they be enhanced to an immo"derate rate; but the duties must be reasonable and moderate, "though settled by the king's license or charter." And then he assigns this reason, "for now the wharf and crane and other con"veniences are affected with a public interest, and they cease to be "juris privati only." Then were the company's warehouses juris privati only at this time? The legislature had said that these goods should only be warehoused there; and the act was passed not merely for the benefit of the company but for the good of trade. The first clause says that it would greatly tend to the encouragement of the trade and commerce of G. B., and to the accommodation of merchants and others if certain goods were permitted to be entered and landed and secured in the port of London without payment of duties at the time of the first entry: and then it says that it shall be lawful for the importer of certain goods enumerated in table A. to secure the same in the West India dock warehouses: and then by s. 2. other goods enumerated in table B. may in like manner be secured in the London dock warehouses. 3 And there are no other places at present lawfully authorized for the warehousing of wines (such as were imported in this case) except these warehouses within the London dock premises, or such others as are in the hands of this company. But if those other warehouses were licensed in other hands, it would not cease to be a monopoly of the privilege of bonding there, if the right of the public were still narrowed and restricted to bond their goods in those particular warehouses, though they might be in the hands of one or two others besides the company's. Here then the company's warehouses were invested with the monopoly of a public privilege, and therefore they must by law confine themselves to take reasonable rates for the use of them for that purpose. If the crown should hereafter think it adviseable to extend the privilege more generally to other persons and places, so far as that the public will not be restrained from exercising a choice of warehouses for the purpose, the company may be enfranchised from the restriction which attaches upon a monopoly: but at present while the public are so restricted to warehouse their goods with them for the purpose of bonding, they must submit to that restriction: and it is enough that there exists in the place and for the commodity in question a virtual monopoly of the warehousing for this purpose, on which the principle of law attaches, as laid 2 See 1 Black. Comm. 264: Bolt v. Stennet (1800), 8 Term. 606. 343 G. 3, c. 132, the general warehousing act. down by Lord Hale in the passage referred to, which includes the good sense as well as the law of the subject. Whether the company be bound to continue to apply their warehouses to this purpose may be a nice question, and I will not say to what extent it may go; but as long as their warehouses are the only places which can be resorted to for this purpose, they are bound to let the trade have the use of them for a reasonable hire and reward. shed! must be reasonable price for Held!- GROSE, J. The company contend that they may take what warehouse rent they please: but if they have a monopoly of the warehousing for this purpose, we cannot say that the legislature intended that they should take any price they chose to impose upon the importer; for if they could, it would violate the general intention of the act which was to promote and assist trade, and not to prejudice it, which the company would be enabled to do if they could enhance their demand for warehouse rent to any extent they pleased. And if we attend to the principle of law by which monopoly. olies are regulated, and apply to this case what is laid down by Lord Hale upon that subject, it is impossible to say that this company do not come within that principle. LE BLANC J. We can only look to the situation of the parties as they appear upon this record, and with reference to the acts of parliament. The company are proprietors of warehouses in the port of London, which they were not under any obligation to erect by the original act constituting them a company: they stood therefore before the passing of the general warehousing act in the same situation as other proprietors of warehouses. Then the warehousing act was passed, which is expressed to be for the encouragement of trade and the accommodation of the merchants and others: and by the 2d section it is made lawful for the importer to secure these goods in the London dock warehouses without paying the duties upon entry; and it does not appear at present that that privilege is extended either by act of parliament or by any other competent authority to any other than the warehouses belonging to the company. Then admitting these warehouses to be private property, and that the company might discontinue this application of them, or that they might have made what terms they pleased in the first instance; yet having, as they now have, this monopoly, the question is whether the warehouses be not private property clothed with a public right; and if so, the principle of law attaches upon them. The privileges then of bonding these wines being at present confined by the act of parliament to the company's warehouses, is it not the privilege of the public, and shall not that which is for the good of the public attach on the monopoly, that they shall not be bound to pay an arbitrary but only a reasonable rent? But upon this |