
    John R. Putnam, App’lt, v. The State, Resp’t.
    
      (Court of Appeals, Second Division,
    
    
      Filed April 19, 1892.)
    
    1. Canals—Bridges.
    Appellant was the owner of a dry dock in $\ connecting with a large basin which opened into the canal, and the surplus waters of which flowed through plaintiffs lands. A bridge across the basin was at one time an elevated one, then a draw, and after that a swing bridge erected by the claimant with the consent of the state. In the fall of 1886 the state removed the swing bridge and erected a stationary bridge at the same level as the tow path, thus shutting in a canal boat of claimant’s.^ as there was-no water in the canal at the time. Held, that the state was liable.
    2. License.
    The privilege which claimant enjoyed was revocable at .the will of the state, but it included an obligation which the state could not withdraw from arbitrarily and subvert at its mere will and, pleasure, and having been permitted to place his boats inside of the bridge in the fall of the year, and the state having thereafter withdrawn the water from the canal it was bound to afford him a reasonable opportunity to remove them. -
    
      Appeal from a decree of the board of claims dismissing the claim herein and awarding nothing thereon.
    
      TT. B. Cushney, for app’lt; S. W. Rosendale, attorney-general, for resp’t.
   Brown, J.

The claimant sought to recover damages for several alleged causes. We concur in the conclusion reached by the board of claims in all except one. It appears from the findings of the court that for many years prior to 1886 the claimant was the owner and in possession of a dry-dock in the village of Fultonville, situate on the northerly side of the Erie canal. The dock connected with a large basin which opened into the canal. The basin was upon the land of the state and across its mouth was maintained a bridge which was a part of the tow-path.

The water from the canal filled the basin and thence flowed into the dry-doclc. The only means of communication between the canal and the dry-dock was through the basin.

The bridge maintained across the basin was at one time an elevated one, at another a draw-bridge, and after that a swing-bridge which had been erected by the claimant with the consent of the state.

In the spring of 1886, for reasons satisfactory to the state, it, removed the swing-bridge and erected in its place a stationary bridge at the same level as the tow-path.

At that time the claimant had a canal boat lying in the basin and one in the dry-dock, and by reason of the construction of the said stationary bridge he was unable to move said boats from said basin and dry-dock and lost the use thereof. It appeared from the evidence that the reason why the boats could not be moved was that the bridge was constructed before the opening of navigation and when there was no water in the canal.

The court further found that at the time of constructing said bridge the assistant superintendent of public works told the claimant that he (claimant) could erect a suitable bridge that would meet the requirements of the state and permit the use of his property, if he wished, and when he did so the stationary bridge would be removed, and that the claimant did not avail himself of that privilege.

Upon such facts the court found that there was no liability upon the part of the state.

We think this conclusion was erroneous.

The privilege which the claimant enjoyed was one revocable at. the will of the state, but it included an obligation which the state-could not withdraw from arbitrarily and subvert at its -mere will' and pleasure. It appeared that the surplus waters of the canal flowed out through the claimant’s land, and that the bridge which was removed in the spring of 1886 had been erected at the claimant’s expense, and it is fair to assume that these things constituted in some measure the consideration for the privilege which the claimant enjoyed in the basin. In the absence of express contract the- law often infers a promise from one party to the other arising from the nature of the transaction and when the circumstances authorize the assumption that such was in the contemplation of the parties, and the implied promise in such cases is such that justice would dictate under the particular facts presented to the court.

We must assume such a promise in this case, for it cannot be that it was in the contemplation of the parties that the privilege given could be withdrawn at a time and under circumstances that would inflict severe loss upon the claimant. And having been permitted to place his boats inside of the bridge in the fall of the year, and the state having thereafter withdrawn the water from the canal, it was bound to afford him a reasonable opportunity to remove them.

This he was deprived of by the construction of the low stationary bridge before there was water in the canal upon which to float the boats. This right, of which claimant was deprived, was not overcome by the offer to permit him to erect a new elevated bridge at his own expense. There is no finding or evidence that he accepted that offer. He was entitled to reasonable notice and opportunity to remove the boats, and unless it appeared that in some way he had waived or surrendered such rights, he had a valid claim for damages against the state.

The order and award should be reversed and a new trial granted, costs to abide event.

All concur, except Yaw, J., absent.  