The opinion of the court was delivered by
Stiles, J.Appellant’s objection to the sufficiency of the complaint is not well taken. It is true that the second paragraph of the complaint alleges that the “ right and privilege to construct and maintain said wharf in and upon said Tyler street ” had been given by ordinance, etc., but the allegations which show where the wharf was actually built and where the accident happened make it clear so far as the complaint is concerned that the part of the wharf where the plaintiff was injured was not “in and upon Tyler street,” but about one hundred feet from the *466land of Tyler street, and out over the water. If the facts exactly corresponded to the complaint, therefore, perhaps this judgment might stand. But it seems from the testimony and the findings that, in fact, the wharf was “ in and upon” Tyler street, at the point where the hole which caused the injury was, and this cast upon the city of Port Townsend the duty of seeing that it was maintained in proper condition for travel. 2 Dill. Mun. Corp. (4th ed.), § 1012; Fowler v. Strawberry Hill, 74 Iowa, 644; Hutchinson v. Olympia, 2 Wash. T. 314; Charter of Port Townsend (Laws 1881, p. 134, § 93).
Perhaps, if this structure had been maintained merely as an approach to the wharf in the condition in which it was originally built, thirty-two feet wide, the defendant might have been held liable for the injury. But he did not construct the wharf. Eisenbeis constructed it; and at the time of its construction, even though it were two feet and over wider than the ordinance permitted, it had a sufficient guard rail which would have prevented this accident. But Tyler street was seventy-three feet wide, and soon after the wharf was built people began to build upon and occupy the property along the street and wharf. The front of the buildings so erected was over twenty feet from the outer edge of the wharf, and the owners planked out over the intervening space on the wharf level and removed the guard rail, so that a solid roadway was made from side to side of the seventy-three foot street, and the whole came thus to be used as a public street. It was as a public street that plaintiffwas passing over it; otherwise, he would have had no right there, unless business connected with the wharf gave him a license to walk upon it, which was not alleged or proven. Morgan acquired the wharf from Eisenbeis, presumably after the planking by abutting owners, the removal of the guard rail, and the use of that part of the wharf as a public street. Taking it at that time and under those circumstances he acquired nothing but the thirty feet *467granted by the ordinance, which did not include the hole at all and he was under no duty to look after it at all. The city, either by positive requirement or permissive license, had caused the abutting'property owners to plank out to the wharf, and the negligence, if any, in leaving the hole was thus not the negligence of either Eisenbeis or Morgan.
Sundry items of damage seem to have been allowed by the court, which were unsupported by evidence, but it is not necessary to pass upon them.
The judgment must be reversed, with instructions to the court below to dismiss the action, and it is so ordered. Costs to the appellant.
Anders, C. J., and Hoyt, Dunbar and Scott, JJ., concur.