
    The People of the State of New York ex rel. Elihu B. Frost, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Railroad compa/ny—duty of, to restore culverts constructed, when its tracks were laid, to connect land fronting the Hudson river with land on the other side of the tracks — statements on information and belief cure of 'no mail against positive' sworn statements in proceedings for a mandamus.
    
    The duty imposed upon a railroad corporation, by the act under which it was incorporated, to restore to its former state of usefulness, so far as practicable, any stream, watercourse, road, highway, dock or wharf interfered with by it, so that “ In all cases where such railroad shall intersect the lands of any individual, or pass between such lands and the usual place of access to the river, and cannot be. conveniently crossed by reason of high embankments, deep cuts or otherwise, the said corporation shall at their own expense construct and sus- » tain convenient passes or roads across or under the railroad, for the passage of persons, cattle, carriages and teams, for the purposes of farming or managing such lands, and giving to them their usual access to-the river,” is a continuous duty, the performance of which may be compelled by mandamus, notwithstanding that the act commanded to be done is for the benefit of an individual and not for the benefit of the general public.
    Where the railroad embankment intersects a parcel of land fronting on the Hudson river, and the railroad company constructs, in conformity with the requirements of the statute, culverts affording access to the river from the land on the other side of the embankment, the temporary failure of the landowner to make use of the river and of the culverts does not authorize the railroad company to fill up a portion of the latter.
    Statements on information and belief contained in the papers, submitted in opposition to a motion for a peremptory writ of mandamus, are of no avail against positive sworn statements of facts contained in the moving papers.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from an order of the Supreme Court, made at the Rings County Special Term and entered in the office of the clerk of the county of Westchester on the 20th day of April, 1901, granting the relator’s motion for a peremptory .writ of mandamus.
    
      George H. Walker, for the appellant.
    
      Ralph E. Prime, for the respondent.
   Jenks, J.:

The relator shows that he owns lands situate on either side of the tracks of the railroad corporation. His land on the west has frontage of wharves, piers, bulkheads and docks on the Hudson river. Before, and in 1848, the lands were used as a brickyard, and this use has continued. The railroad corporation (the predecessor of the present corporation, consolidated therewith pursuant to chapter 917, Laws of 1869), incorporated under chapter 216, Laws of 1846, condemned a strip of this land, and built thereon an embankment for its tracks, and so divided the land. Section 14 of said statute provides : “ Whenever it shall be necessary for the construction of their single, double or treble railroad or way, to intersect or cross any stream of water or water courses, or any road or highway, between the places prescribed by the first section of this act, it shall be lawful for the said corporation to construct their way or ways across or upon the same; but the corporation shall restore the stream, or water course, or road or highway, thus intersected, to its former state in a sufficient manner so as not to have impaired its usefulness.” Section 15 of the same statute provides: “* * * ■ They are also required to construct such bridges as may be necessary to provide for the free passage of such vessels and boats as heretofore have or now can pass into and from the same, the bays that may be crossed by said railroad, and if any wharf or dock shall be cut off by the said railroad, the said company shall extend or so improve the same as to restore it to its former usefulness, so far as it may be practicable to do so. And the owner or owners thereof are hereby authorized to occupy the river front, outside of said railroad, for the erection and use of wharves or docks.” Section 16 of the same statute provides: “ It shall be lawful for the owners of the land over which such railroad shall be constructed, to cross the said railroad at some convenient place or places, with his or their servants, cattle, teams and carriages, for the purpose of using and managing their respective farms, over which the said railroad shall pass, doing no injury or damage to said railroad. In all cases where such railroad shall intersect the lands of any individual, or pass between such lands and the usual place of access to the river, and cannot be conveniently crossed by reason of high embankments, deep cuts or otherwise, the said corporation shall at their own expense construct and sustain convenient passes or roads across or under the railroad, for the passage of persons, cattle, carriages and teams, for the purposes of farming or managing such lands, and giving to them their usual access to the river.” The embankment was solid and stood, ten feet above the land on either side. When it was built, the corporation pierced it with six culverts, all of which were used for many years, and were maintained until 190.0 by the corporation, when it filled up four of them and narrowed the remaining two by two feet each. The land east of the embankment, is divided into three brickyards, each brickyard having its separate machines,..space"and lime kilns. In 1888 brickyard Ho. 1 was leased to persons who made brick thereon for about four years, and who used the culverts for transportation. In 1889 the other yards were leased to persons Who, for the same time, did likewise. In 1894 yard Ho. 1 was leased to a third person, who did likewise until 1900. But the facts must be determined by the opposing affidavits. (People ex rel. Corrigan v. Mayor, 149 N. Y. 215.) These affidavits are made by a civil engineer and by a superintendent of the railroad. The engineer deposes that he knows the premises, and then further says that he is informed and believes ” certain matters, which, as thus stated,, are of no avail against positive sworn statements of facts in the relator’s case. (People ex rel. McGuire v. Bricklayers' Union, 20 App. Div. 8, 11; People ex rel. Kelly v. Common Council, 77 N. Y. 503, 511.) The affiant does depose that, since 1899 all the buildings and Sheds upon the premises used for the manufacture of bricks have been removed except a two-story, brick building erected for a power house by the Croton Brick Company and now occupied by a tenant, who uses the same for the purpose of grinding emery; that the furnace used for the experiment of making enamelled brick is now in ruins; that the trestle work used by the said brick company upon which cars were moved from the river through a culvert to the premises of the relator, on the- easterly side of the railroad, is also in ruins, and that the only- one1 of the six culverts mentioned hr the moving papers used by the present" sole occupant of said premises is culvert “ C4,” which is about twenty-six feet in width and at least eight feet in the clear. He further deposes that the piers and bulkheads on the westerly side of the said railroad and opposite the premises of the relator are in a state of ruin;, that the clay bank upon the premises, from which material must be taken for the manufacture of brick, is at present about 1,500 feet east of the railroad tracks. In addition there are certain statements which are, at best, opinionative, and which can- be regarded as facts only-on the theory that they are properly the subject of expert testimony, namely, that, it is impracticable, because of the location of the works used in grinding emery, to use any culvert but 04; ” that the state of ruin in the wharves and bulkheads is so great as to make them impracticable for loading vessels; that all kilns and dry yards necessary for the manufacture of bricks would necessarily be erected at such a distance east of the railroad tracks that all tracks necessary for the conveyance of fuel from the docks and of burned brick to the docks would be laid in converging lines to one culvert, and no more than one culvert would be necessary for the operation and management of any brickyards on the premises; that, from his examination, of the claybeds, bis opinion is that no excavation has been made therefrom for eight years, and that any break in the continuity of an earth-supported track, on which rapidly moving trains are run, is a serious danger to the safety of the traveling public. The affidavit of the superintendent shows that the culverts are crossed by the main line over which at least 200 trains pass daily.

It nowhere appears that the present construction of the embankment either restores the watercourses so as not to impair their usefulness, or leaves the usual access to the .river. It does appear that such construction radically departs from that originally made and maintained for more than fifty years, and which, presumably, was in uniformity with the requirements of the statute. The railroad corporation seems to stand upon these propositions : That it obeys the statute when it affords" such access as is commensurate with the present actual use of the lands; that it obeys the statute so .long as, in the opinion of its engineers, the use of this land for brickyard purposes requires but one culvert. The vice of these propositions is that the statute requires that the watercourses must be restored to their former state in a sufficient manner so as not to have impaired their usefulness, and that in such a case as this the corporation must construct and maintain convenient passes under the railroad for the purpose of farming or managing such lands and giving to them their usual access to the river. The usefulness of the watercourse and the usual access plainly refer to the physical condition of the lands and waters at the time prior, to the construction of the road, and the purpose of the statute was to leave such rights unimpaired. The land and the waters are still unchanged, and .so far as it appears they may presently be put to the same full usef that marked them for almost fifty years. The mere fact that the owner of the lands does not for a time use them so as to require at that time all of the watercourses or means of usual access certainly . confers no right upon this railroad to nullify the very provisions of the statute that limit its right to pass over these lands and to condemn such part of them as may be necessary for its road, Tempos rary nonuser cannot effect a repeal of the statutory obligations of the corporation. The very statute which gave existence and power to this corporation limited its rights to the preservation of those of the-relator. (Peckham v. Dutchess County R. R. Co., 47 N. Y. St. Repr. 182.) . The proposition of the defendant would not only assume a right withheld from it by the statute, but would impair a right which that statute assured to another. Though the railroad condemned the land for its embankment, it did so subject to the. rights which were assured to the relator by the statute, and there rests upon it the obligation to preserve them irrespective of the condemnation. (Jones v. Seligman, 81 N. Y. 190, 197.) The duty imposed upon the. corporation is a continuous one. (Hatch v. Syracuse, B. & N. Y. R. R. Co., 50 Hun, 64; Town of Windsor v. D. & H. C. Co., 92 id. 127; affd. on opinion, 155 N. Y. 645.) The alleged danger to .the traveling public affords no excuse for a disregard of this statute. If engineering cannot surmount the danger, there remains either condemnation or certainly purchase to obviate it.

The learned counsel for'the appellant also insists that mandamus cannot issue in this case. Mandamus lies against such a corporation. (People ex. rel. Garbutt v. R. & S. L. R. R. Co., 76 N. Y. 294; People ex rel. Bacon v. N. C. R. Co., 164 id. 289.) But the point raised is that the act commanded to be done is not for the benefit of the public, but for the owner of the lands. Certain authorities are cited, arguendo, that where a mandamus has issued in cases apparently similar, the act commanded involved the public interest. Thus it is urged that in People ex rel. Green v. D. & C. R.. R. Co. (58 N. Y. 152), where a restoration of a highway was ordered, it was a public highway; that in People ex rel. Kimball v. B. & A. R. R. Co. (70 N. Y. 569), the bridge was designed to carry a public highway; that in People ex rel. Garbutt v. R. & S. L. R. R. Co. (supra), the construction of fences and cat-tie guards was required from Rochester to Le Roy; and that in People ex rel. Bacon v. N. C. R. Co. (supra), the highway was a public highway. These authorities undoubtedly involved matters of construction, repair or improvement which concerned the públic, and yet that fact does not warrant the conclusion that such cases are authorities for the proposition that the writ of mandamus must be confined to them and to kindred cases. An example will illustrate: The Rome, Watertown and Ogdensburgh Railroad Company became, through consolidation, the owner of two-lines of railroad between the same points, and abandoned one of them on the ground that parallel lines were unnecessary. The People, by their Attorney-General, prayed for a peremptory writ of mandamus to compel restoration. E-arl, J., speaking for the court, said: “As this writ was applied for by the attorney-general on behalf of the people, it must be assumed that it was issued only to subserve a public interest and to protect a public" right. If private interests only were involved, the application for the writ by the attorney-general, on behalf of the people, was not proper. In that case it should have been applied for by the private parties interested, who should have been relators. In order, therefore, to maintain this writ and to justify the action of the court in granting it, we must be able to see, from the undisputed facts alleged, that it was issued to protect some public right or to secure some public interest.” (People v. R., W. & O. R. R. Co., 103 N. Y. 105.)

I think that the order in this case can be sustained upon the principle that there is a plain statutory duty cast upon this corporation, and that the right of the relator to the relief incident to its discharge is clear. In People ex rel. Coppers v. Trustees (21 Hun, 184) Barrett, J. (at p. 195), states the rule in terse language: “ Mandamus is appropriate where a public duty is imposed, or some act specifically directed by statute.” Mr. Wood, in his work on Mandamus (2d ed. at p. 64), states : “ When a corporation fails to discharge its duties «according to the requirements of its charter, or the statutes of the State, it may be compelled to do so by mandamus on the relation of any person having a special interest therein,” and follows his rule with many instances. (See, also, Tapp. Hand. *30, *31; Herr.Hand. § 158 et seq.; 1 Redf. Railw. [6th ed.] §155; High Ex. Leg. Rem. [3d ed.] §§ 320, 326; Reg. v. Trustees Luton Roads, 1 Q. B. 860; The Queen v. The York and North Midland Railwarg Co., 3 Eng. R. & C. Cas. 764, which latter case, though reversed [pp. 773, 776], did not disturb the rule laid down by Lord Denman, C. J., that a mandamus would issue. [Lefurgy v. N. Y. & Northern R. R. Co., 21 N. Y. St. Repr. 114.)

The learned counsel further contends that there is an adequate remedy by action. Undoubtedly there is another remedy, but that which is in law is not adequate, and that which is adequate is in equity. There is no adequate specific legal remedy which bars the relator.

■ The order appealed from must be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  