
    The Trustees of the Freeholders and Commonalty of the Town of Southampton, Respondents, v. Nathan C. Jessup, Appellant.
    
      Resolution of the trustees of the town of Southampton authorizing a bridge and roadway across the Great South bay—right to change the structure after its erection — parol evidence as to what was intended.
    
    The trustees of the town of Southampton passed the following resolution:
    “ Resolved, That Nathan 0. Jessup be and is hereby given liberty to make a roadway and to erect a bridge across the Great South Bay, commencing at the south point of Potunk Neck; thence running southerly to the beach, the said bridge to be a drawbridge of a width of not less than twenty feet, the height above the meadow three feet, and the draw to be twenty feet wide; and the said Nathan 0. Jessup shall not cause any unnecessary delay to those navigating the waters of said bay.”
    After obtaining the franchise Jessup built the drawbridge and the roadway, the latter being laid upon piling which allowed the waters of the bay to flow through under it. Some years afterwards Jessup proceeded to make the roadway solid by filling in the space between the piles.
    In an action by the trustees of the town to restrain Jessup from so doing it was
    
      Held, that if the roadway as originally built was in accordance with the intention of the parties at the time the franchise was given, and was intended by Jessup at that time to be a complete and permanent structure, he could not, without an additional franchise, subsequently change its character;
    That it was competent for the trustees of the town to show by parol that it was the intention of both parties that the roadway should be of wood and open to the water’s flow, and that as originally constructed it was intended to be permanent.
    Goodrich, P. J., dissented.
    
      Appeal by the defendant, Nathan C. Jessup, from a judgment of the Supreme Court in.favor of the plaintiffs, entered in the office of' the clerk of the county of Suffolk on the 29th day of August, 1900,. upon the decision of the court rendered after a trial at the Suffolk-Special Term.
    The facts are stated in the opinion of Smith, j., and in the dissenting opinion of Goodrich, P. J. -
    
      Charles M. Stafford, for the appellant.
    
      Thomas Young, for the respondents.
   Hirschberg, J.:

In affirming the judgment in this action we adopt the opinion of Mr. Justice Wilmot M. Smith at Special Term, with this addition-: On the first trial of this action the judgment in favor of the plaintiffs-was based upon the theory that the resolution passed by the trustees of the town of Southampton by virtue of which the defendant constructed the roadway and bridge which are the subject of controversy was a mere license, and, as such, revokable at pleasure. The Court.' of Appeals decided that it amounted to a franchise, and accordingly reversed the judgment and granted a new trial. (Trustees of Southampton v. Jessup, 162 N. Y. 122.) Judge Vann, writing for the Court of Appeals, laid considerable stress upon the fact that none of .the trustees testified upon that trial as to the character of the-roadway which the defendant was authorized to build, so far as the-same may have been understood and declared at the time the franchise was granted. The trustees insist that it was the intention at that time that the roadway should be open to the passage of the waters of the Great South bay, and not a solid embankment obstructing navigation, but as Judge Yaw pointed out, the franchise by its terms was specific and unambiguous as to the kind! of bridge which; the defendant was authorized to build, viz., a drawbridge of specified- dimensions, but made no specification as to the roadway.” As. a matter of fact, however, the defendant constructed an open roadway immediately upon receiving the franchise, and it was many-years thereafter that he commenced the work of. changing it into-a solid embankment, which- work is enjoined' by the judgment now under consideration. In the opinion of Judge Vann the silence of the trustees on the former trial, that is, their failure to testify as to-the intention of the parties on the subject of the kind of roadway to be built under the franchise, was significant, leaving nothing on the question of intention except the resolution itself.

On this trial the trustees testified that the intention of both the parties, the trustees and the defendant, was that the roadway should be of wood and open to the water’s flow. If this. evidence is competent, as the dictum referred to would appear to indicate, the-judgment appealed from is abundantly supported. In our opinion it is competent and controlling evidence, .quite independently of the question whether it may be permitted in order to explain any supposed ambiguity in the language of the resolution or to supplement its terms. The resolution clearly allows the defendant to build but one roadway or bridge. He acted under it in building the original roadway, and if that structure, as then built, was in accordance with the intention of the parties at the time the franchise was given, and was intended by the defendant at that time to be a completed and permanent structure, exhausting the authority conferred, he could not without an additional franchise lawfully change its character-years afterwards to the manifest detriment of the inhabitants of the-town and against the wishes of the trustees. His contention is that, the original open structure was but a temporary matter, which he. then designed to subsequently make permanent in character by filling in with earth and other material. The trustees contend otherwise, and upon this disputed question of fact it seems clear that evidence may lawfully be received -as to what was said and done by the parties at the time the franchise was applied for and granted, as well as at the time.the work was originally completed and inspected. The defendant’s claim that the structure was temporary, and that he intended from the outset to ultimately fill it in, is inserted in the amended, answer, and it was competent for the plaintiffs to forestall it by proof that the structure, as first built, was what the defendant intended to build in accordance with the understanding existing at the time he acquired his rights, and that he impliedly admitted that, fact when the work was done. In this view the evidence is overwhelming that the defendant did not build the open roadway as a temporary structure, but as a permanent creation, in full accord with the intention of both parties at the time, and. as a practical exposition of his understanding of the nature and effect of the rights conferred upon him and of the full scope and purport of his franchise.

The judgment should, therefore, be affirmed upon the law and facts, with costs.

. Woodward, Jenks and Sewell,'JJ., concurred; Goodrich, P. J., read for modification and affirmance.

Goodrich, P.. J. (dissenting):

I entertain views of this case different from that of my associates.

The action was commenced in June, 1895, and was tried in December, 1895, when a judgment was rendered in favor of the plaintiffs. On appeal this court affirmed the judgment. (10 App. Div. 456.) An appeal was taken to the Court of Appeals, which reversed the judgment and ordered a new trial. (162 N. Y. 122.) At the second trial a judgment was again rendered for the plaintiffs and the appeal now comes to us.

It is unnecessary to recapitulate the facts out of which the controversy arises as they are fully stated in the volumes cited. Bor convenience of discussion, however, I quote the language of the resolution under which the defendant claims his- rights, reading as follows:

Sesohed, That Nathan 0. Jessup be and is hereby given liberty to make a roadway, and to erect a bridge across the Great South Bay, commencing at the south-point of Potunk Neck; thence running southerly to the beach, the said bridge to be a drawbridge of a width of not less than twenty feet, the height above the meadow three feet, and the draw to be twenty feet wide; and the said Nathan C. Jessup shall not cause' any unnecessary delay to those navigating the waters of said bay.”

The judgment enjoins the defendant “ from digging, excavating, embanking or otherwise disturbing the lands under the waters of the Great South Bay at or adjacent to Potunk Point, described in the complaint, for the purpose of making a solid roadway or embankment, and from substituting for the wooden bridge or structure, supported on piles, which the defendant, Nathan• 0. Jessup, has built across said Great South Bay at or near said Potunk Point (or for any part thereof), a solid embankment of earthen materials ■across, over or through said Great South or any part of said bay.”

The judgment thus enjoins two distinct acts ; First, digging or disturbing the lands under the waters of the bay for the purpose of making a solid roadway or embankment; second, substituting a solid roadway of earthen materials for the present wooden bridge.

On the former appeal in this action (162 N. Y. 122) and in People ex rel. Howell v. Jessup (160 id. 249), which grew out of the same facts as those presented in the case at bar, the Court of Appeals announced certain propositions of law which must control our conclusions on the present appeal.

First. The town of Southampton, under the Andros and Dongan charters, was vested with title and sovereignty over the waters of Great South bay at Potunk Point, as those waters were not navigable within the common-law rule prevailing at the time the charters were granted. (People ex rel. Powell v. Jessup, supra.)

Second. The town had power to authorize a riparian property •owner to construct and maintain over and on such waters and lands under water such a bridge as the State might have authorized had it, instead of the town, succeeded to the English sovereign’s title ■and control over such waters, namely, a bridge which is not an unreasonable obstruction to navigation. {Ibid.)

Third. The power of the sovereign holding in trust for the people the navigable waters to partially diminish the navigability of such waters has long been settled. Abundant illustration of the ■exercise of the power may be found in the grants of lands under water in the Hudson river to the Hudson River and the West Shore railroad companies, by which bays or arms, larger in area and of ■deeper water than the one in question, have been rendered inaccessible by boats of any kind from the main stream except through a drawbridge. {Ibid.)

Fou/rth. The right created by a resolution of the town authorized ■a riparian proprietor to make a roadway and erect a bridge across the bay, is a franchise as distinguished from a license or an easement, and is as effective as a grant by deed of an executive body and is the usual form in which franchises are conferred. (Trustees of Southampton v. Jessup, supra.)

Fifth: Any reasonable and ordinary roadway, such as a solid embankment of earth, is authorized by such a resolution, as a roadway to be made over lands under water includes more than a mere right of way and of necessity contemplates a structure resting on the land and extending above the water, cmd m the absence of specifications in the gra/nt confers upon the grantee of the-franchise the right to make it out of the materials-in common use for the construction of roads, such as earth and stone. Wood is not ordinarily used for the purpose, and the right conferred was not to build a viaduct but to make a roadway which is generally solid from the ground up. (Ibid.)

Sixth. The defendant was not to erect a bridge and roadway, but to malm a roadway and erect a bridge (the italics are in the opinion). The latter had to be an elevated structure in order to pass over the channel and not obstruct navigation, while the former could be a solid bank of earth. (Ibid.)

Seventh. The grantee. of the franchise under such resolution waives no right by building a temporary structure in the first instance. (Ibidl)

Eighth. If the plaintiffs wished to limit the defendant to a wooden structure resting on piles, which would have been more like a bridge than a roadway, they should have said-so, The resolution is silent upon the subject for the words, height above the meadow three feet,” refer to the bridge and not to the roadway.1 (Ibid.)

Ninth. The effect of a solid roadway in holding the water back after a heavy storm was not spoken of at the time of the grant, so far as appeared, and if the plaintiffs had wished protection from such a result they, doubtless, would have made provision for it in the resolution, the same as they did with reference to protecting the navigation of the channel. They took no such precaution and cannot now enjoin the defendant because they failed to do what they might have done. (Ibid.) ■

Tenth. The reason of ordering a new trial may be found in the concluding words of the opinion: “ Whether he could dig upon the land of the plaintiffs in order to get the material is open to question, and as the matter has not been fully argued we do not now decide it. The evidence suggests, but does not show, that the earth and sand of the roadway may, unless confined in its place, ultimately wash away somewhat and result in the formation of sand bars which will obstruct navigation. We pass upon no question relating to this subject. The complaint should not be dismissed because the investigation upon the trial under review was not thorough enough to exhaust the facts and a new trial may develop a different situation in some respects.” {Ihid.)

The Court of Appeals did not specifically pass upon the question of the admissibility of evidence that the defendant wished to build a solid roadway on the south side, such as he had already built on the north side.

In the short decision the. trial court found that “ When the resolution * * * was passed, and when the same went into effect, it was the intention and understanding of the trustees of the town, and of the defendant, that the structure over the entire width of the bay should be a wooden structure, supported by piles, such as the defendant soon aftér the passage of the resolution proceeded to construct. Said resolution was so construed and acted upon by the parties, and after the bridge on piles was built by the defendant, the then trustees and the defendant inspected it at defendant’s request, and all agreed that it was built according to the resolution and as they all intended by the" resolution. The acts of the defendant complained of were, therefore, without authority and constituted a trespass.”

The first question requiring consideration is the admissibility of evidence of what was said and done by the parties before and at the time of the passage of the resolution. The plaintiffs, for the purpose of showing that it was not the intention of the parties that the defendant should erect a solid roadway' but only a wooden structure on piles through the waters of the bay, offered evidence of conversations which accompanied the making of the contract. In other words, they were attempting to vary the terms of the resolution which the Court of Appeals has decided to be a franchise. The right to do this must depend upon the question whether there is any ambiguity arising out of the terms employed. (Corse v. Peck, 102 N. Y. 513.)

In Bast v. Bank (101 U. S. 93) the court adopted the language of the Supreme Court of Pennsylvania in Barnhart v. Riddle (29 Penn. St. 96), as follows: “ When parties have deliberately put their engagements into writing, and no ambiguity arises out of the terms employed, you shall not add 'to* contradict, or vary the language mutually chosen as most fit to express the intention of their minds. What if the parol evidence prove, never so clearly, that they used such and such words in making their bargain; the writing signed, if it contain not those words, is final and conclusive evidence that they were set aside in favour of the other expressions that are found in the written instrument. And hence this rule of law is only a conclusion of reason, that that medium of proof is most trustworthy which is most precise, deliberate, and unchangeable.”

This statement of the law by a Pennsylvania court is all the more forceful as, there was at one time a tendency in that State to relax the ancient stringency of the common-law rule.

In Thomas v. Scutt (127 N. Y. 133) it was held that to bring a case within the rule admitting parol evidence to complete an entire agreement of which a writing is only a part,, two tilings are essential: First, the writing must not appear upon inspection to be. a complete contract; second, the parol evidence must be consistent with and not contradictory to the written instrument.

As the Court of Appeals has declared that the resolution was an irrevocable franchise, conferring upon the defendant the right to make a solid embankment or roadway out of materials in common use for the construction of roads, such as earth and stone, and that he waived no right by building a temporary structure, and as the resolution does appear to be complete in itself, and as there is no ambiguity in its language, it was reversible error, to admit evidence of the intention of the parties to vary the effect of the resolution This seems to me the only logical deduction from the opinions of the Court of Appeals in the cases cited. It follows that the exceptions to the two quoted findings were well taken.

The trial court also found that “ A solid embankment of earth substituted for such wooden structure in whole, except the width of the draw (or from the draw to the south shore of the bay), would result in irreparable injury to the plaintiffs.”1 The defendant excepted to this also.

The Court of Appeals has found that the plaintiffs, within and under their powers, granted an irrevocable franchise to the defendant, and that he had the 'right thereunder to build a solid roadway. Consequently, the matter of injury to thé plaintiffs was not a defense sufficient to justify the court in revoking what the Court of Appeals-has declared to be an irrevocable franchise. That was matter which might have affected the granting of the franchise. The plaintiffs had absolute power over the Water and lands under water at the place in question, and, subject to the power of the United States,, could exercise control' over them; they exercised such power in making the grant authorizing the defendant to do what they might have done themselves, and it is now too late to plead irreparable injury. Consequently, the admission of evidence upon that subject and the finding in question were error.

There remains, however, the question as to the effect of the final clause of the resolution, And the said Nathan C. Jessup .shall not cause any unnecessary delay to those navigating the waters of said bay.” Having already declared the power of the plaintiffs to grant the franchise to erect a solid roadway, we must assume that the prohibited interference of this clause related solely to the restricted navigation of the waters of the bay as it might exist after the road, way should have been constructed. It had reference, therefore, solely to delay of such navigation by reason of an insufficient drawbridge or its failure to operate properly. There is no finding, and no clause in the judgment, that the drawbridge interferes with such navigation.

As to the first injunctive clause of the judgment, which restrains the defendant from digging or otherwise disturbing the lands under water, it is to be said that the Court of Appeals declined to pass upon that question. There is nothing in the resolution which authorizes the defendant to dig his material from the land of the plaintiffs, and to that extent I think the judgment is correct and should be affirmed.

It is also evident that under the decision of the Court of Appeals the 2d clause of the judgment enjoining the defendant from substituting a solid roadway for the present wooden bridge is error. That court distinctly upheld his right to do so, and I see nothing in the evidence which would support a finding to the contrary.

The judgment is entered upon a decision which does not separately state the facts found, and the defendant has filed exceptions to such decisions so that this court has power to review all questions of fact and law, and modify or affirm the judgment or grant a new trial, or grant to either party the judgment to which he is entitled. (Code Ciy. Proc. § 1022.)

. Because the Court of Appeals has already practically decided all the questions involved in this appeal, except as to the defendant’s right to dig on the plaintiffs lands for materials with which to construct the roadway, I think that the judgment should be modified • by striking out the clause reading, “ and from substituting for the wooden bridge or structure,• supported on piles, which, the defendant, Nathan C. Jessup, has built across said Great South Bay at or near said Potnnk Point (or for any part thereof), a solid embankment of earthen materials across, over or through said Great South or any part of said bay ; ” and that the judgment, as thus1 modified, should be affirmed, without costs of this appeal.

Judgment affirmed on the law and facts, with costs.

The following is the opinion of Mr. Justice Wilmot M. Smith, delivered at Special Term :

Smith, J.:

On June 2, 1888, the trustees of the town of Southampton passed a resolution, which reads as follows: ;

JResol/oed, 'That Nathan 0. Jessup be and is hereby given liberty .to make a roadway and to erect a bridge across1 the Great South Bay, commencing at the south point of Potunk Neck; thence run-' ning southerly to the beach, the said bridge to be a drawbridge, of a width of not less than twenty feet, the height above the meadow three feet, and the draw to be twenty feet wide; and the said Nathan C. Jessup shall not cause any unnecessary delay to those, navigating the waters of said bay.” . . .

The bay at this point is between 300 and 400' feet wide. The channel or deep water, which is on the north side of the bay, is about 125 feet wide, and the shoal water covering the flats which extend out from the south shore is about 200- feet wide. After the passage of the resolution the defendant constructed a bridge, com-posed of piné and oalc piles, covered with plank across the entire width of ■ the hay. About six years afterward the defendant commenced the construction of a solid roadway for ¡a distance of 200 feet from the south shore of the bay, excavating the earth from the bottom of the bay, on either side of the bridge, and throwing it toward the middle, under and adjoining both sides of the bridge. The trustees served notice on the defendant forbidding him to continue the work of constructing the roadway, and commenced this action to enjoin such construction.

Upon the trial the court directed judgment for an injunction on the ground that the resolution did not authorize the defendant to construct a solid roadway over any portion of the bay. The Appellate Division on appeal affirmed the judgment. The Court of Appeals on appeal reversed the judgment and granted a new trial. The Court of Appeals held that the only evidence in the case indicating the intention of the parties was found in the terms of the resolution itself, and that - under the terms of the resolution the •defendant had the right to build any reasonable and ordinary roadway such as an embankment of earth, but held that it was open to question whether the defendant had the right to excavate upon the plaintiff’s land to procure the materials for that purpose. The court says that the resolution does not specify of what materials either the bridge or roadway should be built and, as I interpret the opinion of the court, it is permissible upon the new trial to take evidence in addition to the terms of the resolution to determine the intention of the parties. If the resolution had given the defendant the right and permission to build a roadbridge across the bay there could be no question that he would have no right to make a solid roadway over any part of the bay. If it had stated in terms that he could build a bridge and a solid roadway which together would extend across the bay, his right to build a solid roadway over some portion of the bay would be unquestionable. Upon the whole evidence given upon the retrial of the -case, I am convinced that it was the intention of the parties that the defendant should have permission to build a roadbridge across the bay and that he has no right to build a solid roadway in any part of the bay between the north and south shores — for these reasons:

First. There is nothing in the resolution to indicate how far a roadway should extend, and the defendant himself says that nothing was said by him to the trustees, or by the trustees to him, as to how far north the roadway was to extend. The trustees were men of intelligence, of good business ability and common sense, and it is not reasonable to believe that if they intended to give the defendant the right to make a solid roadway in any part of the bay that nothing was said either in the resolution or in the discussions preliminary thereto as to how far the roadway should extend.

Second. The testimony of Charles Halsey, Warren Corwin, Albert J. Post .and John Quinn, four of the trustees who voted for the-resolution, is clear and explicit that it was plainly understood that the bridge was to extend from shore to shore. Quinn testifies that: the permission was given to the defendant on the condition that it be-built on piles, and that he accepted it on that condition. Corwin testifies that Jessup wanted to build a solid roadway on the south, shore, but that the trustees would not agree to it. Halsey testifies that it was stated that the bridge was to be built upon piles from the meadow to the beach. Post testifies that the understanding was that: the bridge should be built so that navigation would not be obstructed from shore to shore. These witnesses are men worthy of belief, they have no personal interest in the result, and I think their testimony should be believed in preference to the uncorroborated denial of the-defendant.

Third. What is, perhaps, quite as significant as any circumstance-in the case, the defendant did actually build a bridge on piles from shore to shore immediately after the passage of the resolution, and after the bridge was completed he invited the trustees to inspect it,, they went and looked at it. ' John Quinn gives this account of the inspection: “ Q. Now, after you looked it over, what if anything-did the trustees say to Jessup in regard to it? A. We told him. that it was all right, done just as we expected him to do it, and just-in accordance with the way we wanted it done, and he said ‘ I told you I could do it right.’ ”

Mr, Albert J. Post gives this account- of the inspection: The trustees seemed to be satisfied with the work that Mr. Jessup did there. Q. Did they say that to him ?: A. Tes, sir; * * *' with the bridge and the draw, everything was satisfactory; the bridge was.built according to the permission given- him; they told him that — Q. What did he say to that ? A. He seemed to be as much pleased as the trustees were; that he was satisfied; expressed himself that way.”

This testimony is entirely uncontradicted by the defendant. It is inconsistent with the theory that the trustees or the defendant at that time had any idea that the resolution gave him permission to build a roadway or bridge different from that he had already con- ■ structed. To break the force of this evidence, in part at least, it is urged that that portion of the bridge over the flats was a temporary structure, but it now satisfactorily appears, by the testimony of an expert bridge builder, that the south portion of the bridge is constructed of materials as permanent in character as the north portion.

Finally. It is improbable, considering all the circumstances, that the trustees would seriously entertain the proposition to permit the obstruction of the free passage of. the water in any portion of the space to be covered by this bridge. The evidence clearly shows the great importance to the residents of the territory immediately east of the bridge that there should be no obstruction of the water at this point. In the future development of the bay it may be of supreme importance that not merely the present status of affairs be maintained, but that the passageway be further deepened. The privilege of making a solid roadway is of no economical value to the defendant. A bridge on piles answers every reasonable requirement. A permanent obstruction across this bay at this point for the greater portion of its width would be an exercise of power on the part of the trustees so unnecessary to the grantee of the franchise and so serious in its present and future consequences to the people of the town as to raise a strong presumption that no such franchise was'intended to be granted.

The plaintiff is entitled to an injunction as demanded in the complaint. I do not consider the question of damages a serious one, and upon the testimony I cannot fairly estimate an amount to which the plaintiff would be fairly entitled, so that the judgment must be limited to the injunction demanded by the plaintiff, with costs. 
      
       The opinion referred to is printed on page 534.
     