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App. Div.]

Fourth Department, July, 1911. Prior to the passage of the Barge Canal Act, so called, being chapter 147 of the Laws of 1903, which authorizes the construction by the State of the barge canal, no question was raised as to the right of plaintiff's predecessors in interest to construct the bridges in question in the manner in which they were constructed or as to the maintenance and operation of the railroad in question over and across the same.

Said Barge Canal Act provides, among other things, in substance, that the Seneca river at the point in question shall become and form a part of such barge canal. Section 3 of the act provides: “New bridges shall be built over the canals to take the place of existing bridges wherever required or rendered necessary by the new location of the canals. All fixed bridges and lift bridges when raised shall give a clear passageway of not less than fifteen and one-half feet between the bridge and the water at its highest ordinary navigable stage. (See Laws of 1910, chap. 83, for last amendment to said $ 3.)

In order to construct the barge canal as contemplated by the act not only must the bridge across the river have “a clear passageway of not less than fifteen and one-half feet between the bridge and the water at its highest ordinary navigable stage," being eight feet higher than the present structure, but the piers in the bed of the river which support the existing bridge must be removed. Indeed, it is practically conceded that in order to accommodate the construction of the barge canal as contemplated a new bridge will be required, involving a cost or expenditure of at least $100,000.

The learned Deputy Attorney-General contends that the cost of removing the present structure or of reconstructing it in such manner as to comply with the requirements of the Barge Canal Act must be borne entirely by the plaintiff if it is to continue to maintain its railroad across the Seneca river. Such contention was adopted by the defendants, the State officials, and before the commencement of this action, without making or offering to make any compensation to the plaintiff for the interference with or destruction of its bridge, made necessary by the improvement of the Erie canal, they requested and directed the plaintiff to raise said bridge and said approaches thereto, and plaintiff having refused to com

Fourth Department, July, 1911.

[Vol. 146. ply with said request and direction the defendants threatened to enter upon said bridge and to alter, change and raise the same. Thereupon this action was commenced to restrain the defendants from carrying out such threat or intention.

Defendants' contention in the premises is sought to be sustained, first, upon the ground that by the incorporation of the Southern Central Railroad Company under chapter 140 of the Laws of 1850, or because of any acts done in compliance with the provisions of the said act, it did not acquire any right or license to construct the bridge in question. In effect, that the Seneca river being a navigable stream, the act of 1850 did not authorize said company to in any manner obstruct the same, and that it in erecting said bridge and the plaintiff in operating its railroad thereon were trespassers upon the property and rights of the State, and that, therefore, it was within the power of the State to at any time cause the removal of such obstruction and to compel the discontinuance of such trespass.

It is not claimed by the respondent that any statute existed authorizing the construction of the bridge in question and its use by the plaintiff other than is found in section 28 of the Railroad Law of 1850. That act provides as follows:

“Every corporation formed under this act shall, have power,

“5. To construct their road across, along, or upon any stream of water, water-course, street, highway, plank road, turnpike or canal, which the route of its road shall intersect or touch; but the company shall restore the stream or watercourse, street, highway, plank road and turnpike thus intersected or touched to its former state, or to such state as not unnecessarily to have impaired its usefulness. Every company formed under this act shall be subject to the power vested in the Canal Commissioners by the seventeenth section of chapter two hundred and seventy-six of the Session Laws of eighteen hundred and thirty-four. Nothing in this act contained shall be construed to authorize the erection of any bridge or any other obstructions across, in or over any stream or lake navigated by steam or sail boats, at the place where any bridge or other obstructions may be proposed to be placed; *

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App. Div.]

Fourth Department, July, 1911. The learned trial court has found, the correctness of which finding is amply supported by the evidence, that the Seneca river is a navigable stream and that its bed is owned by the State. It was so navigable from the earliest history of the State to 1871, when the first bridge in question was constructed, and it has ever since continued to retain that character. Indeed, in the early times and before the construction of the Erie canal it was a part of the principal highway of commerce. After the construction of the Erie canal and under the conditions as they existed in 1871, for a long time previous thereto and ever since, the commerce upon such river has dwindled and practically ceased to exist. After the Erie canal was built, whatever traffic had theretofore been carried on on the river was transferred to the canal, which furnished a more convenient means of transportation, and with the consent or acquiescence of the State authorities highway bridges and other structures were constructed across the river both above and below the point at which the plaintiff's bridge was located which effectively prohibited its navigation. The plaintiff's bridge was only one of many structures and obstructions which brought about such result.

Such being the condition of the river as to navigability in 1971, and in 1865, when the Southern Central Railroad Company was incorporated, we think the fair meaning and true interpretation of the Railroad Law of 1850 authorized such railroad company to construct its railroad across said river upon the bridge erected by it. As we have seen, by the express language of the statute such company was authorized “to construct their road across, along, or upon any stream of water”

"water-course.” The words used, “any stream of water” or “water-course,” must have referred to a navigable stream or watercourse; else such words are meaningless, because the State had no control or authority over any private “stream of water” or “water-course.” A railroad might be constructed across or over them with the consent of the owner and wholly independent of the consent of the State either by statute or otherwise. So that the meaning of the statute is that a railroad company was authorized to construct its railroad upon any navigable “stream of water or water-course



Fourth Department, July, 1911.

(Vol. 146. the route of its road" intersected or touched; but the company shall restore the stream or water-course

thus intersected or touched, to its former state, or to such state as not unnecessarily to have impaired its usefulness.”

The construction of the bridge in question and the operation of plaintiff's railroad over the same in no manner interfered with the usefulness of Seneca river as a navigable waterway for the reason that during that entire period and wholly independent of any acts committed by the plaintiff or its predecessors, such river was non-navigable for all practical purposes.

It would be an unreasonable interpretation of the statute to hold that a railroad company was prohibited from crossing a stream or watercourse although at one time navigable but which because of the changed conditions had been abandoned and with the consent and acquiescence of the State its navigation made impossible.

The part of the act of 1850 last above quoted does not aid the defendants in the contention that the plaintiff's predecessor was a trespasser in erecting the bridge in question, or that the operation of plaintiff's railroad over the same was unlawful, because it cannot be claimed upon the evidence that at any time from a period many years prior to 1871 to the present time Seneca river at the place in question has been navigated by steam or sail boats and so wholly independent of the obstruction caused by the erection of the bridge in question.

We conclude that such bridge was a lawful structure; that its erection and use as a part of the plaintiff's railroad was authorized by the provisions of the act of 1850.

Second, it is urged by the appellants' counsel that in any event the Seneca river being a navigable stream it did not lose its navigable character because of any obstructions which were permitted to exist therein or over the same and that it was at all times competent for the Legislature to improve and increase its navigability and when necessary for that purpose to remove or cause to be removed all obstructions therein or over the same, including the bridge in question, at the cost and expense of the owners thereof, including the plaintiff, or to require all such bridges to be reconstructed in such manner as not to inter

App. Div.]

Fourth Department, July, 1911. fere with the navigability of such river as so improved and increased at the cost and expense of their respective owners.

We think the position thus taken by the appellants' counsel is correct and is amply supported by authority.

In the case of Slingerland v. International Contracting Co. (169 N. Y. 60), at page 70, the court said: “The doctrine must be regarded as settled that, whatever the rights of the owner of lands bordering upon, or within the waters of, a navigable river, they must yield when the powers of government are called into exercise for a general public benefit in the improvement of navigation, and this is, of course, true whether the power be exercised by the Federal or the State government. Loss may result to the individual; but he is remediless at law. He can have no private rights in the river, which are exempt from the requirements of a public or governmental necessity.” (Citing Sage v. Mayor, 154 N. Y. 61.)

As stated by the learned Deputy Attorney-General in his brief, it has been held in numerous cases that all grants of land and of franchises or licenses of the character in question are made subject to an easement or right reserved to do whatever is reasonably necessary to preserve or promote the public right of navigation. This right or easement, according to the authorities, is vested in both the Federal and State governments. (Transportation Co. v. Chicago, 99 U. S. 635; West Chicago Railroad v. Chicago, 201 id. 506; Union Bridge Co. v. United States, 204 id. 364.)

The same doctrine has been held by the courts of this State. In the case of City of Buffalo v. D., L. & W. R. R. Co., No. 2, (136 App. Div. 274), which was an action brought by the city of Buffalo to compel the defendant to change its fixed bridge across the Buffalo river to a drawbridge, in order to increase the navigability of such river, Mr. Justice KRUSE, speaking for the court, said: “I am of the opinion that the company did not acquire the right under its grant or franchise from the city to perpetually maintain a fixed bridge over the river, regardless of the requirements of the public in the use of the river as a highway and waterway for commerce and navigation. I think the Legislature neither intended to delegate to the city, nor has the city assumed to grant the right to the railroad company, abso

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