
    Camden & Amboy Railroad Company v. Finch.
    The statute (2 Rev. Laws, 429, § 212, 213, 215, 217) which gives the owner oí a wharf the right to distrain for wharfage, does not apply to a. case where a party so used the pier, which projected from a bulkhead north of the owner’s wharf, as to prevent him from deriving any benefit therefrom. It was an obstruction to the owner’s enjoyment, but not a use of it, from which a contract to pay wharfage could be implied.
    (Before Sanuforb, Mason, and Camfbelll, J. J.)
    June 14, 1851.
    
      Demurrer to Pleas.—This was an action of replevin brought by plaintiffs, for goods taken by the defendant from on board plaintiffs’ steamboat, while lying at a certain pier in the city of New York.
    The defendant, by his cognisance, acknowledged the taking, and justified the act by setting up that he distrained the goods as bailiff of Mr. Lispenard Stewart, who was the landlord and owner of a bulkhead 100 feet long, on West street, between Watts and Hoboken streets. That the plaintiffs’ steamboat used and enjoyed this bulkhead for the space of 32 days.
    The plaintiffs’ plea traverses this, and sets up, that during the times mentioned in the cognisance there was a pier extending from the bulkhead, which pier and bulkhead were lawfully in the possession of, and held by plaintiffs, under a lease from Stewart, which lease was dated May 1,1844, but not delivered until March, 1847, at which time this pier was appurtenant to, and constructed in front of, and extending from the bulkhead, and that the demised bulkhead extended to, and joined the bulkhead mentioned in the cognisance. That the pier was lawfully used, at the time alleged, by the steamboat of plaintiffs. That said pier and bulkhead, so in the possession of plaintiffs, and so used by them, were so situated, in reference to the undemised bulkhead of Stewart, that in making fast to, and using the former by plaintiffs’ boat, it was necessary that a portion of the steamboat should be fronting the undemised bulkhead ; and that in using the latter by vessels, it was necessary that such vessels should be fronting the said' pier. That the steamboat; at the time mentioned, used the said pier ; absque hoc, that the steamboat used the bulkhead or wharf, in the cognisance mentioned.
    The defendant replied, that before the erection of the pier, Stewart was possessed of 130 feet of bulkhead on West street, and that, while so possessed, on the 1st May, 1844, he executed a lease to the Messrs. Stevens, and leased to them so much of the bulkhead as lies north of a certain notch in the dock log, being 30 feet of the north part, for a term of years. That he remained the owner of that part of the bulkhead'lying south of the demised part, and was lawfully entitled to the wharfage accruing thereon. That at the time of the demise, the Messrs. Stevens hired' from Stewart, for one year, the right of laying up a steamboat in the basin" between Hoboken and Watts streets, and that they continued to hire up to May 1,1847. That after said demise of said 30 feet of bulkhead, Messrs. Stevens, without the license of Stewart, built a pier extending, from the bulkhead so demised, 150 feet into the river, thereby, and by the use thereof by placing steamboats side by side alongside of the same, preventing any access of vessels to Stewart’s undemised bulkhead, except what was made by vessels laid up alongside of said pier, and alongside of those attached to the pier in the said basin, in front of said bulkhead. That the pier mentioned in the plea is the same pier as in the replication mentioned, and that plaintiffs’ steamboat was, at the several times mentioned, wholly in the occupancy of said basin in front of the bulkhead belonging to Stewart, and excluding all other vessels from the use thereof, at the respective times, during which, said steamboat was occupying the same.
    The plaintiffs demurred on the following grounds :—
    1st. That the facts set forth in said replication do not show a lawful power or authority in said Lispenard Stewart to dis-train, for the wharfage claimed in this action, on the chattels of said plaintiffs on board said steamboat, nor to warrant said defendant, as the bailiff of said Stewart, to take the same.
    2d. That said replication shows that said Stewart was not legally entitled to demand and collect the said wharfage from the said steamboat—inasmuch as it shows that said steamboat was not made fast to the bulkhead or wharf of the said Stewart remaining undemised—and that the said vessel did not use said bulkhead or wharf so remaining undemised.
    3d. That it appears that said steamboat was at the several times, Ac., made fast to a pier or wharf which was not in the possession of said Stewart, and to which he had not the title, for the purposes aforesaid.
    4th. That it appears that said John C. Stevens, Robert L. Stevens, and Edwin A. Stevens, were entitled to collect said wharfage ; as. said vessel was made fast to said pier in their possession.
    5th. That if said Stewart were entitled to collect wharfage from said steamboat while made fast, to said pier, yet it does not appear that he was entitled to distrain the said chattels of said plaintiffs, for the wharfage of said steamboat for several times, or for more times than once.
    6th. That said replication does not take issue with, nor confess and avoid the facts averred in said third plea.
    1th. That said replication does not traverse the avermentsmade in said plea relating to the lease therein set forth.
    8tli. That said replication sets up a traverse upon a traverse in said plea.
   By the Court.

Mason, J.

The demurrer in this case is well taken.

From an examination of the several sections of the statute upon the subject of wharfage in the city of New York (2 Rev. Laws, 429, § 212, 213, 215, 217), it appears that to entitle the-owner of a wharf to distrain for wharfage, the vessel on whose account the - wharfage is claimed, must have been fastened to the wharf, or to another vessel which was so fastened. An agreement to pay wharfage, is implied from the fact of the vessel so using the wharf, and the statute fixes the amount to, be paid.

But the ground on which the defendant rests the right to distrain in this case is, not that the plaintiffs used the wharf, but that they used the pier which projected out into the river from the bulkhead north of the wharf in question, in' such a way as to prevent the owners of the wharf from using or. deriving any benefit from it. It was an obstruction interposed by the plaintiffs to the enjoyment of the wharf by the owners— not a use of it by the plaintiffs, from which a contract to pay wharfage can be implied.

The owners of the wharf may be entitled to compensation in damages, for the injury they have sustained ; but we are-clearly of' opinion that they cannot obtain this compensation by distress. If a-person should unlawfully obstruct the passage to his neighbor’s dwelling, so as to debar him all access to it, and thereby prevent him from enjoying it, he would be liable to respond in an action for the wrong done, but it' would be difficult for the injured party to sustain an action of assumpsit for use and occupation, or any other proceeding founded on contract : and it is a well settled principle that distress for rent ■can only be resorted to where there has been an agreement to pay rent, either expressed or implied (Valentine v. Jackson, 9 Wend. 202).

There must be judgment for the plaintiff on the demurrer.  