
    Harriet S. Rumsey et al., App’lts, v. The New York and New England Railroad Company, Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1889.)
    
    1. Navigable waters—Obstruction op river pront—When recovery
    CANNOT BE HAD.
    The Hudson River Railroad constructed its road upon land under water of the river parallel with the shore line of the plaintiff, and in doing so raised an embankment. In this embankment in front the defendant’s shore it left a culvert. To this culvert a tramway was constructed from the plaintiff’s land and a dock was built on the westerly or river side of the embankment. By usingthis tramway and culvert, the plaintiffs transportéd brick from their yards to the dock for shipment. Subsequently the railroad company obtained a patent from the state for lands under water, including all west of the embankment, and enclosing the culvert and dock on these lands the defendant constructed its road, cutting off all communication to the dock. The conveyance was absolute, containing no reservation. Held, that the plaintiffs have no right to cross the land conveyed, and that they are not damaged by the defendant’s obstruction.
    3. Same—When no right op way exists.
    No right of way exists in favor of an owner of the main land as against one who acts under state authority.
    3. Same—Remedy to compel restoration op stream.
    If the defendant is bound to restore the stream under the general railroad act, that remedy exists, but it gives no remedy by action as for an illegal obstruction to a private way.
    4. Same—Necessary party.
    In such a proceeding the Hudson River Railroad Company would be a necessary party.
    Appeal from a judgment of the Rensselaer county circuit court.
    The plaintiffs own lands along the east shore of. the Hudson river, which they obtained by devise from James Rumsey. their father. He never had any grant for any land under water in front of said premises; but in 1849, when the Hudson River Railroád was being constructed it took a small piece of these uplands from James Rumsey and thence, passing upon land under water, ran nearly parallel with his shore line all along his river front and between the shore and the channel of the river.
    James Rumsey gave said company a warrantee deed not only for the piece of upland so taken but also for the piece or strip under water, which he had no title to.
    • The railroad company soon after constructed its road, and in so doing raised a solid embankment of earth and stones upon the land under water so deeded to it, rising considerably above the highest tides. In this embankment, in front of the Rumsey shore, it left a single culvert or opening, through which the tide flowed in and out to and from the bay thus formed between Rumsey’s shore and the railroad embankment. To this culvert a tramway was constructed from the Rumsey lands, and a dock was built on the westerly, or river side of the embankment near the outer end of the culvert. By using this tramway and culvert, the occupants of the Rumsey lands along shore were able to transport brick from their brick yards to the dock, and thence in vessels to New York. This use of the culvert continued until about 1878, and then for some reason not shown ceased, and the dock and tramway have gone to decay.
    In 1873 the Hudson River Railroad Company obtained a patent from the state for lands under water, including all west of the aforesaid embankment (at the place in question) and completely inclosing the outer end of said culvert and the dock before mentioned.
    In 1881 the defendant built its line of railway, and at this point located it nearly parallel with the Hudson river railroad’s aforesaid embankment and between the dock and culvert before referred to and the river channel. The defendant’s roadway in front of said dock and culvert was located on lands (under water) granted as aforesaid by the state to the Hudson River R. R. Co., and it formed a barrier impassible to vessels between the said dock and the river channel.
    The plaintiffs now sue the defendant for damages caused by cutting off communication between said dock and the river, and thus depreciating the (rental) value of their brick yard property along shore.
    The court, Barnard, J., rendered judgment for defendant, delivering the following opinion:
    Barnard, J.—Assuming that the plaintiffs have a right of way under the Hudson'River Railroad, with the right, under its charter, to erect a dock “ outside of said railroad,” it was not a right which controlled the legislature in respect to the Hudson river in front of it. Lansing v. Smith, 4 Wend., 11.
    
      The case shows that the commissioners of the land office have conveyed the land under water, in front of' the plaintiff’s dock, to the Hudson River Railroad Company. The defendant has, in pursuance of legislative authority, built its road outside and in some places partly on, the Hudson river grant. The defendant has made no passage way under its road for vessels to go to the plaintiff’s brickyard; in fact its grade is too low to allow a passage under its tracks for brick vessels. Ho request has been shown for a way out for vessels.
    Can the plaintiffs sue the defendant for an obstruction of a way as incident to ownership of the main land?
    There seem to be two serious objections to the action. The Hudson River Railroad Company is not a party, and there is nothing to show that the grant to it is in any way illegal. The land under water belonged to the state, and the commissioners of the land office had authority to sell it. Chapter 140, Laws- of 1850; chapter 625, Laws of 1881.
    This sale under Lansing v. Smith, was legal as against an inner dock owner.
    The second objection is that an owner of the mainland, as against one who acts under state authority, has no standing for an individual action based upon a right of way from the mainland. Ho such right of way exists. An owner of the mainland has no other or different right than any other citizen. Gould v. The Hudson River Railroad, 2 Seld., 522.
    If the defendant is bound to restore the stream, under the general railroad act, that remedy is open to the plaintiffs.
    If it exists, it gives no remedy by action as for an illegal obstruction to a private way. There is no private way, but only a right to enforce an opening in the track, if that be necessary to restore the stream to its former usefulness.
    That could not be determined without the Hudson River Railroad Company being brought in.
    There should be judgment, therefore, for the defendant.
    
      H. H. Hustes (Miller A. Fowler, of counsel), for app’lts; Walter C. Anthony, for resp’ts.
   Pratt, J.

—The conveyance from-the People to the Hew York Central and Hudson River Railroad Company was absolute. It contained no reservation such as is found in the conveyance to Sargent, in reserving to “ each and every of the people the full and free right to use the same until the same should be applied to the purposes of commerce, etc.”

Being an absolute conveyance, the plaintiffs have no right to cross the land thereby conveyed. ' Hence, in judgment of law, the plaintiff is not damaged by defendant’s interposing an additional obstacle between plaintiff’s yard and the navigable water.

There are other objections to plaintiff’s right to recover, but they are so fully set forth in the special opinion, which is adopted, that no further discussion is required.

Judgment affirmed, but as the case is one of extreme hardship, without costs of appeal.

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