Breed

The opinion of the Court was delivered by

This was an action commenced in the Court below by Breed and Dennis, lessees of California and Market wharves, to restrain the defendants from filling the space between the north side of Market street wharf, and the north line of Market street, and to recover damages arising from the partial filling up of the same.

*368 The plaintiffs claim an exclusive privilege to collect wharfage and dockage, &c., under a contract entered into with the sinking fund commissioners of San Francisco, and afterwards ratified hy the legislature. Under this contract the plaintiffs constructed the present wharf, leaving a space within ■ the line of Market street sufficient for the mooring of vessels. For filling up this space, and the consequent obstruction to the plaintiffs’ enjoyment and use of the wharf, this action was brought.

Prior to the contract between the sinking fund commissioners and the plaintiffs, this same space had been laid out upon the official map and dedicated as a public street; the Ayentimento of San Francisco had assumed the ownership and control of the’ soil, and had sold lots upon the line of the street. So far as the city had any…