Appeal from the Sixth Judicial District.

This was an action to recover $4,400 for wharfage or levee dues for laying at the wharf or bank by the levee in the harbor, and within the corporate limits of the plaintiff, fourteen trips.

Two ordinances had been passed by the city, one on the 2d of January, 1852, and the other on the 2d of June, 1852, to * regulate wharfage or levee dues and the [42] duties of the Harbor Master, and upon them and the statutes incorporating the city, this action was based.

The answer denies generally the allegations of the complaint," and alleges that the steamer always laid fifty to one hundred feet below low water mark; that defendant never applied to plaintiff for leave to occupy the place in which the steamer laid, and never used or made.fast to or landed goods on the bank or levee within the corporate limits of the plaintiff.

The cause was tried by the Court, both parties waiving a jury-

The 8th section of the ordinance of January 2d, 1852, is in these words: “The following rates and charges are hereby ordained: All vessels or water craft, excepting steam or ferry boats, which shall or may come within the harbor of this city, and land at the levee or bank, or be made fast thereto, or to any vessel thereto fastened, or shall receive or discharge any freight or passengers in this city, shall severally pay the sum of fifteen cents for each ton of such boat’s burden, Custom House measurement. All steamboats shall pay the sum of eight cents per ton, Custom House measurement, for each and every arrival; provided, no steamer shall be rated at more than 500 tons. ”

The ordinance of June 2d, 1852, provided for laying out the levee and banks of the Sacramento and American Bivers, by the City Surveyor, into separate sections, to be leased by the Mayor and Common Council to such parties as might desire to rent them] the parties renting being required to construct stationary or floating wharves. Section 3d of the ordinance of June 2d, 1852, is in the following terms: £ £ The master, owner or person having charge of any water craft, using or coming to lay at the levee banks aforesaid, or any of said sections of the wharves aforesaid, shall pay unto the city or lessee, or lessees, for the time being, of the section at which said water craft may lay, such rates or fees of wharfage, for so laying or using, as are established by section 6 of this ordinance.”

Section 6th provides “that the city or lessee, or [43] lessees of *the levee or banks of the river, may collect from water craft, using or coming to lay at the levee banks or sections of said levee, the rates of wharfage for each landing and day said water craft shall remain thereat. For steamboats of 500 tons and over, the rate to be $30.”

It was proved that the bank of the river had been dedicated to the public. That the sections mentioned in the ordinance of June 2d, had been laid out by the Surveyor; that the defendant always landed alongside the storeship “Eliza”; that the “Eliza” is opposite to one of the sections of the levee; that defendant always lies out beyond the low water mark; and that the “Eliza” is connected with the levee by a staging, and that the “Eliza” and her staging have been in the same place since June, 1849; that the “Eliza” belonged to the defendant, who has paid rent to the plaintiff,- for the place occupied by her, up to January, 1852.

The defendant moved the Court for a nonsuit, on the ground that the plaintiff had not shown facts sufficient to constitute a cause of action, which motion was denied by the Court.

Upon a finding in favor of the plaintiff the defendant moved for a new trial, which the Court refused, and gave judgment in favor of the plaintiff for $1,920 and costs. The defendant appealed.