
    The People of the State of New York ex rel. The Harlem River and Port Chester Railroad Company, Appellant, v. State Board of Tax Commissioners, Respondent, and The City of New York, Intervenor, Respondent. Three Proceedings (Taxes of 1909, 1910 and 1911).
    First Department,
    December 31, 1914.
    Tax — franchise tax—railroad bridge across navigable stream assessable in determining amount of special franchise.
    'The right of a railroad company to locate its road across highways and navigable streams conferred by the act of incorporation is a special franchise, and bridges spanning such streams are assessable. This is true in a case where the company owns the land on which the abutments of the bridge rest, and also in a case where it has acquired a patent from the State to the fee in the bed of the river and has constructed a bridge wholly within the boundaries of such patent, for such patent is subject to the public rights.
    McLaughlin and Scott, JJ., dissented.
    Appeals by the relator, The Harlem River and Port Chester Railroad Company, from three orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of January, 1914, reducing relator’s special franchise assessments for the years 1909,1910 and 1911 respectively, and confirming them as so reduced.
    
      Charles M. Sheafe, Jr., for the appellant.
    
      Curtis A. Peters, for the respondents.
   Hotchkiss, J.:

These are three certiorari proceedings to review certain special franchise assessments for the years 1909, 1910 and 1911. The only questions are those arising with respect to bridges over the Bronx river and the Hutchison river (Pelham bay). The act under which relator was incorporated gave it the right to construct and maintain a railroad through the Bronx. This act not only created the corporation and conferred upon it the right to be a railroad, but also by section 3 (Laws of 1866, chap. 763), in terms gave it a special right to locate its railroad. across highways and watercourses. This latter right was a special franchise within the decision in People ex rel. Met. St. R. Co. v. Tax Comrs. (174 N. Y. 417) because it conferred authority to cross navigable streams. It would seem to follow, therefore, that bridges spanning these streams are assessable in determining the amount of the relator’s special franchise. The appellant argues, however, that because the undisputed evidence showed that the relator owned in fee the land on which the abutments of the Bronx bridge rested, therefore, there was no special franchise as to the bridge. I do not think any such result follows. The relator also claims that the Pelham bridge is not assessable,' because the relator had obtained from the State Land Commissioners a patent to the fee in the bed of the river and that the bridge was wholly within the dimensions of the patented land. In fact, whatever the relator took by the patent was subject to the public rights in the river. But unquestionably the right to cross the river and to build a bridge for that purpose was secured through the special franchise contained in the charter. I think the decisions in People ex rel. N. Y. C. & H. R. R. R. Co. v. Woodbury (206 N. Y. 304) and People ex rel. Hudson & Manhattan R. R. Co. v. Tax Comrs. (203 id. 119) are distinguishable. In the former case it appeared that the abutments were built upon lands owned by the railroad, and it did not appear that the highway was crossed in pursuance of any special franchise, the court saying: “ The bridge is tangible property, and so far as appears from the record it is not immediately connected with any special franchise. It is not, in the language of the Tax Law, tangible property * * * situated in, upon, under or above any street, highway, public place or public waters in connection with the special franchise.’ ” The respondent appeals to the record in the case (People ex rel. N. Y. C. & H. R. R. R. Co. v. Woodbury, supra) to show that as matter of fact there was evidence in that case that the crossing was by special franchise. I think, however, that we should follow the words of the opinion, and if the Court of Appeals found nothing in the record, we cannot. In the Hudson & Manhattan case the court held that the upper tunnels were not to be assessed because they were built wholly within lands patented by the State, conferring a fee upon the corporation so that they needed no special franchise to tunnel therethrough, but as to the lower tunnels, the corporation had no title in fee to the bed of the river, and it had taken a special license from the local authorities to tunnel thereunder.

The orders should be affirmed, with costs.

Lattghlin and Clarke, JJ., concurred; McLaughlin and Scott, JJ., dissented on People ex rel. N. Y. C. & H. R. R. R. Co. v. Woodbury (206 N. Y. 304).

Orders affirmed, with costs. 
      
       Consol. Laws, chap. 60 (Laws of 1909, chap. 62), § 2, subd. 3.— [Rep.
     