Page:Federal Reporter, 1st Series, Volume 7.djvu/123

 THE B. F. W00L8EY. 111 �affirm it as an undoubted principle of the common law. In: many other cases, also, the right bas been recognized. In a suit in the supreme court of New York, between these same parties, it was held to be the rule of the common law as it. exists in this state. On such a question the opinion of that court is entitled to great weight, and this point must be held not well taken. �2. It is also objected that the libellant never had such an, actual and exclusive possession of the vessel as is necessary to give him this common-law lien. On this point the evi- dence is that the libellant occupies certain premises adjoin- ing a wharf at City Island, in this port, as a ship-yard for the repair of vessels. The premises are partly his own and partly belong to the town of Pelham, constituting a public or town dock. By an arrangement between him and the town authorities he uses this part of the town property for his own purposes. On his own part of the premises is a railway on which he hauls vessels out of the water. This vessel was brought to the place by Terrell, the master and owner. Sbe came to anehor, and afterwards was hauled to the premises ordinarily used by libellant as a ship-yard, being moored at first on that part belonging to the town. She was afterwards hauled out on the railway, and again taken off the rail way and moored in her former position. I am satisfied by the evidence that the owner surrendered the actual care, control, and custody of the vessel to the libellant. The crew were dismissed, except the cook and the mate, whom the owner wished to retain for future service. The owner and the cook and mate helped the libellant in his work. The cook and the mate slept on board the vessel all the time the repairs were going on,. ;except a short time when the condition of the vessel made it impracticable, and then they slept in a building of libellant on the adjoin- ing wharf. The owner stayed by the vessel. and slept on board most of the time, but on Saturdays he went to bis home in Brooklyn, returning on Monday morning. The libellant took his directions from the owner as to what re- pairs were to be made. It is clear from the testimony that the parties understood that the libellant was responsible for ��� �