The rate of toll fixed by the Board of State Harbor Commissioners is: Coal, ten cents per ton ; all merchandise landed upon wharves from vessels, and taken from thence in lighters or other vessels, or warehoused without drayage, must pay six .and a quarter cents per ton wharfage. In this case, coal was landed and placed on the wharf from vessels, and removed by defendant on cars run upon a tramway supported by pillars resting on the wharf, and was warehoused without being hauled on drays. The wharf was built and has at all times been kept in repair by defendant at its own cost. The Court below held that defendant was bound to pay six and a quarter cents per ton, and rendered judgment accordingly. Both parties appealed.
The difference between the two rates was evidently intended to cover the wear and tear of wharves by the passing of loaded means of conveyance. It makes no difference, as far as the question before us is concerned, whether the conveyance was by wagons, drays, or cars; or whether on a tramway resting on pillars ten feet high, on timber six inches above the wharf, or on rails resting immediately on the wharf. In this case the wear and tear is not at the cost of the Board of State Harbor Commissioners ; the cost is borne by the defendant. The wharves of the city arc generally built and maintained, by the Board, and arc under its control, and it would certainly be prudent for the Board to make regulations to cover wear and tear under various circumstances.
We think that the fact that defendant built and maintains *243the wharf might be a proper element to enter into the construction of the rule establishing the rate of toll, were it not for the fact that the lease in this case contains the provision, that “ all freight landed or placed on said wharf shall pay to said Board of State Harbor Commissioners the same rates of toll, from time to time, as shall be charged or collected on other wharves upon the water front of said City and County of San Francisco under the control of said Board of State Harbor Commissioners.” We are therefore of opinion that the toll to be paid by defendant is ten cents per ton.
This cause is remanded to the Superior Court of the City and County of San Francisco, with instructions to modify the judgment in accordance with this opinion.
Thornton, P. J., and Sharpstein, J., concurred.