Fourth Department, July, 1911.

[Vol. 146. lutely and perpetually, to maintain a fixed bridge over the river; but that such right was upon the implied condition that the company might build its bridge over the stream, subject to the future as well as to the then requirements of the public use, and that there remained in the State the right to improve the stream, make it more serviceable as a public highway and increase its navigability as an avenue of commerce and navigation, and that the railroad company took its right subject thereto and is required to meet all reasonable requirements of the State, from time to time, as the conditions change and the public use of the river increases;" and it was held that the railroad company might be required to make the proposed alteration without compensation and without invading any of the rights granted to the defendant by the Constitution. (Interborough Rapid Transit Co. v. Gallagher, 96 App. Div. 632; Brooklyn Elevated R. R. Co. v. City of Brooklyn, 2 id. 98.)

It must be conceded that the use of the Seneca river for the construction of the barge canal is for the purpose of increasing the navigability of such stream.

The bridge in question when constructed being a lawful structure, because at the time it did not unnecessarily interfere with the navigability of the Seneca river and because constructed pursuant to a franchise granted under the Railroad Law of 1850, it was not competent for any State official to remove or cause the same to be removed except by the authority of an act of the Legislature enacted for the purpose of improving or increasing the navigability of such river.

It would seem to follow that the defendants must find authority in the Barge Canal Act, so called, for compelling plaintiff to remove its bridge from the Seneca river and to construct another at its own expense some eight feet higher above the water if it is to continue to operate its railroad at this point.

Such act does not in express terms direct railroad companies or other owners of existing bridges on the line of the barge canal to change their bridges at their own expense or authorize any State officer to direct them so to do.

The appellants, however, contend that that is the fair meaning and intent of the act. It would seem that if it had been

App. Div.]

Fourth Department, July, 1911.

the intent of the Legislature to impose upon railroad companies an expenditure of several millions of dollars in changing their bridges, it would have said so in words which would not leave such an intention open to doubt.

Sections 1 and 2 of the Barge Canal Act relate to the issue and sale of bonds "for the purpose of improving the Erie canal, the Oswego canal and the Champlain canal, and the procurement of the lands required in connection therewith." Section 3 of the act sets forth at length and with particularity the improvement to be made and how and by whom it is to be made. It provides that "within three months after issuing the said bonds or some part thereof the Superintendent of Public Works and the State Engineer are hereby directed to proceed to improve the Erie Canal, the Oswego Canal and the Champlain Canal in the manner herein below provided." The routes of the canals are laid out; the section then specifies the size and dimensions of the canal prisms, the minimum depth and width of construction in rivers and lakes; the construction of locks, spillways, culverts, stream crossings, stop gates, guard gates and material for the construction of dams, etc., and there can be no suggestion that all of such work specified in section 3 should be done otherwise than solely at the expense of the State. Inserted among those various other details of construction, all to be done at the expense of the State, is the following: "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."

A reading of section 3 of the act clearly indicates that no distinction is made in the building of new bridges over the canals to take the place of existing bridges and other work specified in said section. It is an admitted fact that the State was and is building, at its own expense, many new highway bridges where required and rendered necessary by the new location of the canals. Such bridges, among others, included one over the Oneida river, a number over Fish creek and a number over the Seneca river, including among the bridges over the Seneca river the Mosquito point bridge, the WeedsAPP. DIV.--VOL. CXLVI. 11

Fourth Department, July, 1911.

[Vol. 146. port highway bridge, the Bonta bridge and the iron bridge which had replaced the old float bridge a mile up the river from Cross lake, and yet, concededly, such highway bridges are in exactly the same situation, so far as the act is concerned, as are the railroad bridges. Indeed, the bill which eventually became the Barge Canal Act, as originally introduced both in the Senate and the Assembly, contained the word "highway" before the word "bridges" in the sentence in question. That word "highway" was stricken out before the final enactment of the bill, thus leaving all bridges required to be replaced or reconstructed in precisely the same situation.

We think it clearly inferable that the word "highway" was stricken out in the amendment referred to for the very purpose of avoiding the implication that railroad bridges were intended to be excluded from the protection of the act.

Section 5a, added to the Barge Canal Act by chapter 180 of the Laws of 1909, is important as bearing upon the true interpretation of that part of section 3 relating to bridges to which attention has been called:

"S 5a. Where bridges have heretofore been erected by any person or corporation across canals to be abandoned as herein provided, and where the State shall have made compensation to them on account of the expense of constructing bridges for their use in crossing the new routes provided for in this act, those portions of such abandoned canals over which such bridges extend shall not be sold, nor shall it be lawful for such persons or corporations, or their successors, grantees or assigns, to cross such abandoned canals by structures at grade or on embankments until such compensation as the Canal Board shall deem equitable shall be paid into the State Treasury by the persons or corporations to whom the State has made compensation as aforesaid, or by their successors, grantees or assigns. In like cases similar payment shall be required before it shall be lawful for any person or corporation to cross the beds of navigable streams or of streams the property of the People of this State, by structures at grade or on embankments. Any moneys so paid into the State Treasury shall be applied as provided in section five of this act."

This provision specifically refers to compensation to be made

expense of constructing bridges for their use in crossing the new routes provided for in this act."

Applying the provisions of that section to the conditions here present, it will be noted that the railroad of this plaintiff crosses the old canal near Weedsport; the old canal at this point will be abandoned; the plaintiff's railroad also crosses the "new route" in the Seneca river. It would seem that section 5a clearly contemplates that such a corporation as the plaintiff shall receive compensation "on account of the expense of constructing" a new bridge for its use in crossing the new

route.

It also appears and it seems to me very important as bearing upon the intent of the Legislature when the section quoted relating to bridges was passed, that under the authority of the Legislature the State Engineer was directed to and did make an examination and survey of the proposed barge canal, its character, its cost, etc., and, among other things, he reported, in substance, that it would cost upwards of $3,000,000 to reconstruct the existing railroad bridges in such manner as to accommodate the barge canal, and finally the appropriation for the construction of the barge canal was increased to an amount which included the cost of such bridges as reported by the State Engineer and other expenses which had not been included in his first or original report. Indeed, when the Legislature was seeking for information from the Engineer as to the entire cost of the canal, this specific question was asked in a resolution passed by the Assembly: "Are all necessary bridges over the proposed canal provided for?" and the State Engineer, in a written report dated on the 2d day of March, 1903, answered said question in the affirmative. The further question was asked by the Assembly in such resolution: "How many of each kind of bridges will be required?" The State Engineer replied in the same report that twenty-seven railroad bridges would be required. That is exactly the same number mentioned in the Bond report of 1901, among which plaintiff's railroad bridge across the river was specifically named by him. The investigation made by the Legislature through the State Engineer, the information which the Engineer gave to the

Fourth Department, July, 1911.

[Vol. 146. Legislature in respect to the cost of the bridges of the character of the plaintiff's, and then the passage by the Legislature of the Barge Canal Act which provided for all such estimates of costs, it seems to me unmistakably indicates that it was the intent of the Legislature to provide that the State should pay for the erection or reconstruction of bridges of railroad companies made necessary by the construction of the barge canal. That it was the intention to make an appropriation sufficient to cover the cost of making the necessary changes in the railroad bridges is demonstrated by the action which the Legislature took upon the receipt of the Engineer's report. Not only was the word "highway" stricken out from the provision in regard to new bridges, so that the provision was made to apply not only to highway bridges but to all bridges, but the amount of the appropriation was increased so that it would be sufficient to cover the cost of the changes in the railroad bridges as estimated by the State Engineer.

As bearing upon the intent of the Legislature in using the language which it did in section 3 of the Barge Canal Act, above quoted, the opinions of the courts in the following cases are instructive: People v. New York, Ontario & Western R. Co. (133 App. Div. 476); Fulton Light, Heat & Power Co. v. State of New York (200 N. Y. 400); opinion of Court of Claims in same case (62 Misc. Rep. 189).

It is contended that the appropriation of money by the State to build a new bridge for plaintiff's railroad would violate section 9 of article 8 of the Constitution, which provides: "Neither the credit nor the money of the State shall be given or loaned to or in aid of any association, corporation or private undertaking."

We think the constitutional prohibition does not apply. (Trustees of Exempt Firemen's Fund v. Roome, 93 N. Y. 313; Matter of Boston & Albany R. R. Co., 64 App. Div. 257; affd., without opinion, 170 N. Y. 619; Fulton Light, Heat & Power Co. v. State of New York, supra.)

Having reached the conclusion that it was the intent of the Legislature in passing the Barge Canal Act to provide that the railroads required to change their bridges to accommodate such canal should be reimbursed by the State for such cost and