This action is brought to obtain injunctive relief, it being contended that the defendant has been guilty of a continuing trespass and a continuing nuisance, by reason of the erection of the piers and the stone Avail aforesaid, preventing the exercise by the plaintiffs of their alleged right to collect wharfage at West street for that part of the same extending fifty-five feet and six inches southerly from Spring street.
It is contended by counsel that the plaintiffs have a right to maintain this action under the cases of Langdon v. Mayor, 93 N. Y. 129 ; Williams v. Mayor, 105 id. 429, and Kingsland v. Mayor, 110 id. 569.
I am of the opinion, hoAvever, upon the foregoing statement of facts, that neither of these cases is an authority in the plaintiffs’ favor in this action. Although the right to collect wharfage in front of the juremises described in the water grant of February 20, 1804, was given to Lewis Lorton, by the agreement of March 1, 1804, Lorton covenanted that the mayor, aldermen and commonalty of the city of Rew York, *362and their successors, until West street should be made and formed, and as long afterwards as they should think it advisable to reserve and keep open the said public slip or basin, should use cmd take to themselves all the wharfage or orcunage, etc., which should arise from the wharf or pier across the westerly end of said premises on the easterly side of West street, and also from the said wharf or street to be called West street, so long as the same should be reserved and kept open as a public slip or basin.
In this case, as a matter of fact, while under the plan approved by the commissioners of the sinking fund West street has been widened, so that it is 250 feet in width instead of TO, and the slip has been extended by reason of the erection of the new piers, no access to the plaintiffs’ premises on the easterly side of West street has been interfered with. There is a public street still in front of him and also a public basin, much more advantageous -as matter of fact to his premises than the old basin and the old street, which have been replaced by the improvements. In the cases before referred »to the right of the landowners fronting on West street to collect wharfage had been taken away without compensation having been made therefor.
In this case Torton surrendered all his right to collect wharfage while the public street and slip in front of his premises were kept open.
I do not think that the agreement in question confines the-city to maintaining the identical piers, bulkhead and structures which existed in front of Torton’s premises as long as they left him access to the river front and maintained a slip-as large or larger than the slip which existed when the agreement of March 1, 1804, was made.
Even if a technical breach of the agreement of March 1, 1804, by the defendant has been shown, no case, in my opinion, is presented for relief for which the plaintiff demands judgment in this action, and the complaint will, therefore, be= dismissed upon the merits, with costs.
Complaint dismissed, with costs.