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.