
    The New York Central & Hudson River R. R. Co., App’lt, v. Thomas Aldridge, Resp’t (4 cases).
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    Ejectment—Railroad—Land grant.
    The New York Central & Hudson River R..R. Co. cannot be regarded as an adjacent owner within the meaning of the statutes respecting grants of land under water, and cannot maintain ejectment by virtue of such a grant against the owner of the upland.
    Appeal from judgment for the defendant upon trial before the ■court without a jury, March 21, 1891.
    The action is ejectment and is brought with other similar actions to recover from the defendant various parcels of land at Dutchess Junction, used and occupied by the defendant and his tenants in ■connection with their different brick yards, the several parcels being indicated upon the map attached to the case, lettered from 'A to K. The defendants acquiesced in the plaintiff’s title to seven of these parcels, viz., C, B, G, F, H, J and. K, and how occupy them under a lease from the plaintiff, leaving in dispute only parcels A, D, E and I.
    The plaintiff succeeded to the rights of the Hudson River Railroad Company.
    Thomas Aldridge, claiming to be the adjacent owner of the upland, filed a petition prior to May 14, 1867, with the commissioners of the land office of the state of New York, praying for a grant of the land under water adjacent to his upland. This application was opposed by the Hudson River Railroad Company.
    On the 5th day of May, 1869, the grant for the lands under water was issued to defendant by the commissioners of the land office. The grant contains the following reservation : “ Subject to all rights and privileges in and to said premises or any part thereof which the Hudson River Railroad Company may have acquired under its charter.”
    The land described in this grant is the land in contention in these several actions. Portions of the land under water were filled in before the grant was obtained. A dock was built along the whole front, the most of it twenty years ago. The plaintiff never filled in beyond its west retaining wall.
    In the months of September and December, 1868, the plaintiff made maps amending the lines of its original location and filed the same in the Dutchess county clerk’s office. This was done by the plaintiff while the defendant’s application for land was pending before the 'commissioners of the land office. By the filing of these maps the plaintiff claims to have acquired the title to the land under wafer within the lines of said maps.
    On the 26th day of December, 1873, the plaintiff obtained a grant for lands under water along the front of the defendant’s upland and 121 feet westerly from the centre line of said railroad, from the commissioners of the land office of the state of Hew York.
    This grant conveyed the lands under water within the lines of the amended location.
    
      Wilkinson & Cossum {Robt. F. Wilkinson and Milton A. Fowler of counsel), for app’lt; H. H. Hustis, for resp’t.
   Dykman, J.

If the doctrine enunciated by the court of appeals in the case of Rumsey v. N. Y. & N. E. R. R. Co., 114 N. Y., 423; 23 St. Bep., 928, is to have its full force and operation, and is to be followed to its legitimate conclusion and result it will require the affirmance of this judgment.

In that case it was held to have been the intention of the legislature in the passage of the law of 1846, incorporating the Hudson Biver Bailroad Company and authorizing the construction of its railroad along the east shore of the Hudson river, to protect the upland owners along that shore in their access to the waters of the river, and to maintain their rights in the river unimpaired by the construction of the railroad, and that it did. not change the policy of the state with reference to the promotion of commerce on the river or deprive the commissioners of the land office of the power to make grants of land under water to the owners of the uplands.

In the elaboration of the principle thus expressed in the condensed head note it was said substantially that the railroad company cannot be regarded as an adjacent owner within the meaning of the statutes respecting water grants and has no capacity to acquire land for any purpose except such as are defined in its charter.

It was also further said in substance that the capacity of the railroad company to deal with the lands it acquired was a limited one, and insufficient to enable it to use such land for the purpose of promoting the commerce of the state upon the river; that the corporation does not come within the class of persons .named in the acts relating to water grants, and cannot be a grantee of state lands for the purposes named in those statutes.

In relation to chapter 283 of the Laws of 1850, which provides that no grant shall be made by the commissioners of the land office which will interfere with the rights of the Hudson Biver Railroad Company, it was said the act could have application only to grants made to an owner whose shore line is east of the railroad, as no other grants could interfere with the rights of the railroad company.

And it was said that even that statute implied a power to make such grants, because it contemplated a grant of land under water, west of the railroad, to a proprietor whose upland is east of the railroad, which will be valid if the rights of the railroad company are protected.

The action reported in the 114th of the New York Reports was brought to restrain the railroad company from operating its road over the lands granted to the plaintiff by the state lying under water, but there was another action commenced by the same plaintiff against the same defendant to recover damages for the obstruction of the plaintiff’s mode of access to the Hudson river, and that action went also to the court of appeals, and was heard in the first division.

The plaintiff was defeated in the lower court, and as the decision of the case depended upon the same questions as the other suit between the same parties, they were again presented to the first division, and the judgment was reversed upon the authority of Rumsey v. The Railroad Company, 114 N. Y., 423; 23 St. Rep., 928, and the opinion in that case was fully sustained and its doctrines reiterated.

.This last decision is reported in 125 N. Y, 681, but the opinion is not printed. It is printed, however, in 34 St. Rep., 454.

Since the foregoing was written, the injunction suit of Rumsey v. The Railroad Company has been decided again by the second division of the court of appeals, and the former decisions are both sustained. Rumsey v. The Railroad Company, 40 St. Rep., 583.

Besides adhering to the former decisions, the court determined some other questions against the defendant in favor of land grants to the original upland proprietors, which will restrict the use of lands acquired by the Hudson River Railroad Company to the purposes contemplated by the charter of that corporation.

The foregoing views cannot be reconciled with the claim of the plaintiff in this action, and require the affirmance of the judgments, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.  