
    The Ben Franklin Transportation Company, Appellant, v. The City of Yonkers, Respondent.
    (No. 1)
    Second Department,
    March 8, 1907.
    Watercourses — municipal corporations — duty of city of Yonkers relative to lands beneath the Hudson river — charge approved.
    Chapter 562 of the Laws of 1899, granting to the city of Yonkers the fee of lands beneath the Hudson river at the mouth of the Nepperhan stream, which provides that said lands “shall be forever kept unobstructed and free from docks, piers or other structures preventing the use of the same by shipping,” does not impose upon the municipality the duty to dredge the said lands for the benefit of private owners, but is intended- merely as a.limitation upon the grant and prohibits the city from using the lands so as tó obstruct navigation.'. It does not require the municipality to remove from" said waters obstructions created by other parties or by the natural action of the waters, and it is not error to so charge in an action against the municipality for alleged injuries sustained by the obstruction of the waters of the Hudson river whereby the plaintiff was prevented from reaching its docks.
    Appeal by the plaintiff, The Ben Franklin Transportation Company, from a judgment of the County Court of Westchester county in favor of the defendant, entered in the 'officó of the clerk of the county of Westchester on the 16tli day of July, 1906, upon the verdict of a jury, and also from an order entered in said clerk’s -office on the 22d' day of March, 1906, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      James M. Hunt, for the appellant.
    
      Thomas F. Ourran, for the respondent.
   Woodward, J.:

The plaintiff’s action is for damages alleged to have been sustained by reason of the defendant’s obstructions in the waters of the Hudson river, preventing the plaintiff reaching its docks. The theory of the action is that the defendant, through its construction and maintenance of sewers, and by dumping snow and ice in the Nepperhan stream, which flows through the defendant city and empties into the Hudson river, has caused an obstruction by reason of the settling of the refuse and sewage, which has interfered with the plaintiff’s rights at its docks. The city has, at intervals, dredged out the basin. Some time prior to the bringing of this action the plaintiff complained to the defendant of the alleged obstruction and requested that the same be removed. The defendant did hot act in the matter. The plaintiff then undertook the work of dredging upon its own account and presented its bill to the defendant for payment, and the action is in effect to compel the defendant to pay the cost of removing this alleged obstruction/ Upon the trial of the action there was a-conflict of evidence as to the cause of the obstruction; on the part of the defendant there-was evidence that the Nepperhan stream drained a large territory outside of the city of Yonkers, including several villages ; that private sewers emptied into the stream; that the plaintiff stabled horses upon the dock and emptied refuse into the basin, and that the sewers which had been constructed and maintained by the city .did not "discharge into the Nepperhan stream, except in cases of floods, and that then the overflow was of ryateiv merely, the sewage having been washed out clean before there could be an overflow, and the sewers discharged directly into the Hudson river, at a point which did not affect .the plaintiff. There was some evidence in support of the plaintiff’s contention, but the jury has found against it, and in the absence of reversible error, the judgment should not be disturbed.

The plaintiff contends that the- court made a fatal error in its charge to the jury. It seems that by .the" terms of chapter 562 of the Laws of 1899 tlie city of Yonkers was granted title to the fee of the land under the waters of the Hudson river at. the mouth of the Nepperhan stream, and it was provided in section 2 of the act that the land so granted by this section tothe city of Yonkers shall be forever kept unobstructed and free from docks, piers or other structures' preventing the use of the same by shipping.” The learned court, in its charge to" the jury, said : “But I charge here that they (the city) were only obliged to keep it unobstructed from any act of their own.” The court was requested to charge,, and did charge, the two following requests: I ask your Honor to charge that there is no liability incurred by this City for the- cleansing of the mouth of this stream under the act, chapter 562 of the Laws of 1899,” and “ I ask you to charge that they are not liable at all-under that act for the cleaning of this basin.” There was no exception to the ruling of the court upon these two requests, counsel for the plaintiff contenting himself with the following: “ I have no fault to find with your Honor’s charge, but in ordér to raise the legal question I ask permission to except to that part of your charge in which, referring to the act of 1899, you said that the City would only be liable to maintain'this slip, or this property describeddn the act, unobstructed from any act of their own, and not from any act of others.”

This exception relates purely to the duty of the defendant under the act of 1899, and we are clearly of opinion that the language of the act does not contemplate imposing a duty upon the municipality to dredge. this slip for tlfe benefit of private parties, but was intended merely as a limitation upon the grant, that the city should not use the lands for the purposes of docks, piers or other structures tending to obstruct navigation. The duty might go to the extent of requiring the municipality to keep the lands free from obstructions of its own creating other than docks, piers, etc., but it cannot be fairly construed to require the defendant to remove obstructions which are created by others, or by the natural action of the waters of theNepperhan stream, and the charge does not seem to be open to criticism.

We are of opinion that the verdict was not against the weight of evidence as to the cause of the obstruction complained of, and we discover no reason for disturbing the result reached.

The judgment and order appealed from should be affirmed, with costs.

Hirsohbero, P. J., G-aynor, Rich and Miller, JJ., concurred.

Judgment and order of .the County Court of Westchester county unanimously affirmed, with costs.  