#### LOFTIS WOOD, Appellant, *v.*FREDERICK HOEFT, CHARLES F. TONJES and C. GERHARDT MOLLER, Respondents.

*Whanfage*— public *streets*— rights *of owners of lots fronting on.*

Plaintiff was the owner oí a lot in tlie city of Brooklyn, fronting on the west on the East river and on the north hy South Sixth street, of the southerly half of which street he was seized hy virtue of the conveyance to him. The city of . Brooklyn, at its own expense, constructed a pier in South Sixth street, extending out into the river beyond the hulk-head on plaintiff’s lot. This action was brought by him to recover wharfage for vessels made fast to the southerly side of said pier. *Reid,,*that he was not entitled to recover; that his ownership of the southerly half of the street was subject to the right of the public therein, and that wharfage for vessels made fast to the pier must be paid to the city of Brooklyn. .

Appeal from, a judgment in favor of tbe plaintiff entered upon the trial of this action by the court without a jury.

In 1835, James B. Taylor and others, being the owners of certain lands in the village of Williamsburg, were authorized by chapter 128 of 1835 to construct bulk-heads and wharves on the same extending into the East river to a line designated in said act, and to receive wharfage .from persons using the same. The owners of the land constructed the bulk-head and filed a map showing the same, together with the streets proposed to be laid out and the lots fronting thereon. Subsequently lot D, on the annexed map, was purchased by the plaintiff, he being the owner by virtue of the conveyances to him of the southerly half of South Sixth street. In 1850, South Sixth street was opened from First street to Biver street, and in 1859 a pier was constructed thereon as shown in the annexed map.

This action was brought by the plaintiff to recover wharfage from an elevator, which had been fastened during the two years prior to the commencement of this action, to the southerly side of the said pier.

*183Exterior pier line as established by Harbor Commissioners under act of 1857.

EAST RIYER.

Permanent water line of village. See act of April 22,1835.



*184
      *Theo. F. Jackson,*for tbe appellant.

*John JB. Bergen,*for tbe respondents.

TJyKmaN, J.:

The facts of this case are substantially undisputed, and are fully found and set out in the decision of the judge before whom it was tried. This action is brought to recover wharfage for the use of a pier by a grain elevator.

The pier does not belong to the plaintiff, and is not on his land. It is wholly north of his northerly line, and was built by the city of Brooklyn. It is true that the conveyance to the plaintiff covers the southerly half of South Sixth street, and it is by virtue of this right that the plaintiff claims to be the owner of the pier, and entitled to wharfage for this elevator, which was made fast to the southerly side of this pier. It must be borne in mind that this pier is a continuation of South Sixth street, and, so far as the plaintiff is concerned, a part of that public street. The plaintiff’s rights, as absolute owner, cease at the southerly line of South Sixth street. His interest in the southerly half of South Sixth street is subject to the rights and privileges of the public in that street. If, therefore, the city of Brooklyn has a pier on the street, at which vessels are made fast, the wharfage must be paid to the city.

It is certainly necessary that the party entitled to wharfage for the use of a dock must be the owner, and we think that the plaintiff, not being the owner of the pier, cannot recover in this action for wharfage. For the same reason, the plaintiff cannot recover damages for the use of the pier. ■ For these reasons we think the judgment of the court below was right, and should be affirmed, with costs.

BabNAkd, P. J., and Peatt, J., concurred.

Judgment affirmed, with costs.