there is no averment in the complaint that it has not paid, or that even a demand has been made. There is not, therefore, any averment in the complaint of a breach which would give the plaintiff in this case a right of action against the defendants on the undertaking. "The breach of the contract being obviously an essential part of the cause of action, must in all cases be stated in the declaration." (Chitty on Pleading, 332; 1 Saunders on Pleading and Evidence, 216); and the omission of a breach cannot be aided or cured even by verdict. (1 Chitty on Pleading, 327.) Judgment and order reversed. SHARPSTEIN, MYRICK, MCKEE, Ross, and THORNTON, JJ., concurred. THE PEOPLE OF THE STATE OF CALIFORNIA v. SAN FRANCISCO GAS LIGHT COMPANY. The State Board of Harbor Commissioners has no authority to collect dockage, wharfage or tolls upon any wharves that do not constitute a portion of a street, ending or fronting upon the waters of the bay. ID. — ID. — ID. — ID. — ID. · DEFINITION. - Section 2524, Pol. C., refers to "streets" which are " thoroughfares," and not to streets covered by water. APPEAL from a judgment for the defendant. The points involved and the argument in this case are substantially the same as in case No. 6676, reported infra. J. B. Lamar and W. W. Morrow, for Appellant. MOKINSTRY, J.: The State Board of Harbor Commissioners can collect dockage, wharfage and tolls only at such places as the statute may authorize. It is clear the present action cannot be maintained if the Harbor Commissioners are not authorized by the statute to collect wharfage, etc., at the Gas Works (Potrero) Wharf. Our attention has not been called to any provisions of the Political Code which are claimed to empower the Board to collect dockage, wharfage, or tolls at the wharf mentioned, other than those contained in Sections 2524 and 2525. Section 2524 provides that the Harbor Commissioners in addition to a "general control" over the premises therein described, "shall have authority to use for loading and landing merchandise, with the right to collect dockage, wharfage and tolls thereon, such portion of the streets of the City and County of San Francisco, ending or fronting upon the waters of said bay, as may be used for such purpose, without obstructing the same as thoroughfares." And Section 2525: "The Board of State Harbor Commissioners are authorized to extend any of the streets lying along the water front of said city and county to a width not exceeding one hundred and fifty feet, when they have not been already so extended. The outer half of said streets must be constructed or built, and maintained in good repair, by the State Harbor Commissioners, or the parties holding under them, and may be used as a landing place or pier on which dockage, wharfage and tolls may be collected. And until such extensions are made the Commissioners may have and use as a landing place, with full power to collect dockage, wharfage and tolls thereon, so much of the streets, now fronting upon the water front, as may be used for such purpose, without obstructing the same as a thoroughfare, etc. Section 2524 refers to "streets" which are "thoroughfares," and not to street covered by water-roadsteads or otherwise. The authority conferred on the Board is to permit the use of the streets for loading and landing merchandise (charging wharfage, etc.), but the "street" on which the goods are landed, is not to be obstructed as a thoroughfare by the merchandise thus landed. The meaning of Section 2525 is equally unambiguous. By it the Board is empowered "to extend" or make wider by constructing or building the outer half of streets "lying along the water front." Until the extensions are made the Commissioners may have and use as a landing place, with power 66 to collect, etc., so much of the streets now fronting upon the water front" as may be so used without " obstructing the same as thoroughfares." The case before us fails to show that the Gas Works (Potrero) Wharf constitutes any portion of a street or thoroughfare ending at or fronting on the water, but, on the contrary, that it is an isolated projection, which is approachable (except by water-craft) only from private property in the rear. Judgment affirmed. MYRICK, Ross, and SHARPSTEIN, JJ., concurred. THE PEOPLE OF THE STATE OF CALIFORNIA v. SAN FRANCISCO GAS LIGHT COMPANY. HARBOR COMMISSIONERS DOCKAGE - WHARVES STREETS. The State Harbor Commissioners have no power to collect dockage upon vessels lying at the Potrero Gas Works' wharf. APPEAL from a judgment for the plaintiff in the Twelfth District Court of the City and County of San Francisco. In the agreed case submitted (under § 1138, C. C. P.) the facts are stated as follows: 1. Defendant is a corporation, duly organized and now existing under the laws of the State of California. 2. The defendant, since the seventh day of March, 1873, has been engaged in the manufacture of illuminating gas, in the City and County of San Francisco, at a place known as The Potrero Station of the San Francisco Gas Light Company Works." 3. A certain wharf, known as the Potrero Gas Works Wharf, situated on the Water Front street, was built by defendant, at its own expense, and used and kept in repair by defendant, at its own expense, since the seventh day of March, 1873, and has, at all times been, and is now in possession of the defendant; and the dock, adjoining said wharf and connected therewith, has, at all times, been dredged by defendant, at its own expense. 4. Betwen the first day of October, 1876, and the last day of January, 1877, certain vessels occupied berths at said wharf. 5. Under the rates of dockages, established by the Board of State Harbor Commissioners for the Port of San Francisco, the amount chargeable against said vessels for the use of the said berths occupied by them, as aforesaid, was and is three hundred and twenty-four dollars and fifty cents. 6. The said amount of three hundred and twenty-four dollars and fifty cents dockage was, since the rate of dockage of said vessels was established and before the commencement of this agreed case, collected and received by defendant of and from the agents and owners of said vessels. 7. That no portion of said three hundred and twenty-four dollars and fifty cents has been paid to plaintiffs, or to the Board of State Harbor Commissioners. 8. Before the commencement of this agreed case, plaintiffs made demand on defendant for the said money so collected and received, as aforesaid. 9. If said wharf is within the jurisdiction of the Board of State Harbor Commissioners, for the purpose of collecting dockage and wharfage, then there is due from defendant to plaintiffs the said sum of three hundred and twenty-four dollars and fifty cents, the dockage of said vessels, as money had and received by defendant, to plaintiffs' use. And upon these facts, the questions submitted for determination were: 1. Is the wharf, designated as "Potrero Gas Works Wharf," under the jurisdiction of the Board of State Harbor Commissioners? 2. Has the defendant the legal right to collect dockage for vessels occupying berths at said wharf? 3. Have the plaintiffs or the Board of State Harbor Commissioners the right to collect dockage from vessels occupying berths at said wharf? 4. Have the plaintiffs the legal right to the three hundred and twenty-four dollars and fifty cents collected by defendant as aforesaid?" Clement, Osment & Clement, for Appellant. This is an agreed case. The plaintiff seeks to recover dockage for vessels landing at the Potrero wharf. Subdivision 3 of the agreed statement shows that the wharf in question was "built by defendant, and has been used and kept in repair by defendant at his own expense since the seventh day of March, 1873, and has at all times been, and is now, in the possession of the defendant, and that the dock adjoining said wharf, and connected therewith, has at all times been dredged by defendant at his own expense." The only theory upon which the plaintiff bases its right to collect dockage from the defendant is that the wharf and dock in question are shown by the diagram to be upon a street known as "Water Front Street," and therefore they are under the jurisdiction of the Harbor Commissioners by virtue of §§ 2524 and 2525, Pol. Code; see Amendments of 1875-6, 36-51. Sections 2524 and 2525 do not apply to this case. Section 2525 says: "The Board of State Harbor Commissioners are authorized to extend any of the streets, to a width not exceeding one hundred and fifty feet where they are not already extended." The word extend means to "construct," for the next sentence reads: "The outer half of such streets must be constructed or built by the Harbor Commissioners * * * * * and may be used as a landing place or pier on which dockage, wharfage, and tolls may be collected. And until such extensions are made the Commissioners may have and use as a landing place, etc., so much of the streets now fronting on the water front as may be used for such purpose without obstructing the same as a thoroughfare. The inner half of such streets to be constructed * * by the owners of the lots abutting thereon." * Thus the streets over which Section 2525 gives the Harbor Commissioners jurisdiction are such streets as they may construct the outer half of; or, such other streets as can be used as a landing place or pier, etc., and these may only be used in CAL REPS. LX-23 |