
    The City of Buffalo, Plaintiff, v. The Delaware, Lackawanna and Western Railway Company and The New York, Lackawanna and Western Railway Company, Defendants.
    (Supreme Court, Brie Equity Term,
    October, 1908.)
    Constitutional law — Deprivation of life, liberty or property without due process of law — What is liberty or property — Regulation of exercise of franchise.
    Franchises — Construction of grant; Regulation of exercise.
    Highways — Obstruction, encroachment and unauthorized use of highway— Building by railway company of bridge over highway.
    Chapter 201 of the Laws of 1884, amending the charter of the city of Buffalo, is part of a scheme for rendering the Buffalo river navigable, and the provision contained therein that bridges “hereafter built” must be swing or draw bridges must be construed as having reference to the time when the work of rendering the river navigable shall have been accomplished.
    The requirement that after the Buffalo river has been made navigable only swing or draw bridges shall be built across it does not impair a franchise to a railroad company to build a bridge across the river which did not specify any details for such bridge and under which the company built a fixed bridge in 1882, as the only franchise the company has is to cross the river, and it is competent for the Legislature to regulate the manner of its exercise.
    The provision of said Act declaring any bridge previously built a lawful structure does not extend to such a renewal of an existing bridge owned by a railroad company as, in effect, creates a new structure; but where such existing bridge has been condemned the company will not be restrained from building a temporary structure until such time as the work of making the river navigable calls for the removal of a fixed bridge at that point.
    Action by plaintiff for permanent injunction restraining defendants from building a fixed railroad bridge across Buffalo river.
    Louis Desbecker (Samuel P. Moran, of counsel), for plaintiff.
    Rogers, Locke & Babcock (L. L. Babcock, of counsel), for defendants.
   Brown, J.

In 1882 the defendants constructed a through truss, two-span, double-track, fixed bridge across Buffalo river, having 14 feet clearance above mean water level, about 800 feet, southwest of Abbott road in the city of Buffalo, under a franchise duly granted by the plaintiff which did not specify any details for such bridge. In 1884, by chapter 201 of the laws of that year, the Legislature, by amendment to plaintiff’s charter, enacted: “ Buffalo' river within the city is a public highway, but any bridge heretofore built over the same and any swing or draw bridge hereafter built over the same within the city by authority of the common council is a lawful structure.” In February, 1907, defendants asked consent of plaintiff to its renewal of the truss bridge by building a two-span, two-track, plate girder, fixed bridge with new concrete abutments and pier; the common council of plaintiff declined to give such consent. In Hay, 1907, the defendants were notified of the action of the common council in determining that only draw or lift bridges should thereafter be erected across the river, as improved under chapter 527, Laws of 1906, and as required by section 10 of that act. Thereafter, the defendants threatening to build a new fixed bridge at the location of and in place of the bridge erected in 1882, the plaintiff brought this action to restrain the same, the contention of the plaintiff being that the building of such a bridge will make it an unlawful structure; that plans for deepening, widening and putting the river into a navigable condition have been adopted; that such fixed bridge will prevent such work and navigation and constitute a nuisance, and that by the provisions of chapter 527 of the Laws of 1906 defendants must install a swing or draw bridge at their own expense. The contention of the defendants is that they are simply renewing in part the bridge of 1882; are not building an entire new bridge, but are repairing the same, and that instead of making new concrete abutments and piers, as stated in their application for consent in February, 1907, they are to remove three top courses of stone of those foundations, cap them with slabs and widen the abutments with concrete, utilizing several courses of stone and foundations of the present abutments and pier; that, by placing on such foundations as thus repaired a new, two-span, girder-bridge, it will be the same bridge that was designated in 1884 by the Legislature as a lawful structure, and that chapter 527 of the Laws of 1906 is unconstitutional, in that it requires existing fixed railroad bridges over Buffalo river to be replaced with swing or draw bridges at the expense of the railroads.

While it is true that the Legislature has said, in effect, that the present bridge of the defendants is a lawful structure and that any bridge “ hereafter built,” in order to be a lawful structure, must be a swing or draw bridge built by authority of the common council, yet that enactment must be construed with reference to the demands of the river for navigation purposes. It was legislation upon the subject of making Buffalo river navigable for lake-going craft by deepening and widening the river. The authority claimed by the plaintiff to put and maintain the river in navigable condition is derived from the revised charter of 1870, section 16, title IX; while section 15 of the same title, by amendment in 1884, is the authority relative to swing or draw bridges. It is apparent that the only necessity for swing or draw bridges is to permit navigation, and the legislative scheme to put and maintain the river in a navigable condition is to deepen and widen the channel by dredging and by removing obstructions in the shape of fixed bridges by replacing them when rebuilt with swing or draw bridges. This scheme must be considered as a whole; and when the program of making the river navigable by actual dredging, deepening and widening has reached such á stage that a clear channel unobstructed by bridges is needed for the progress of the work and navigation, and a bridge hereafter built ” is to take the place of a bridge existing in 1884, it must be of a swing or draw type.

The claim that this section of the charter of plaintiff is unconstitutional, because it deprives defendants of a valuable property right without due process of law, is founded upon the fallacy that defendants under their franchise have a vested right to forever keep and maintain a fixed bridge at the point in question;- that the Legislature in 1884 having declared that the fixed bridge then existing was a lawful structure, all fixed bridges thereafter built at that river crossing must likewise be lawful structures. It may be true that the defendants have a vested right to keep and maintain the bridge of 1884 as a fixed bridge as long as they care to, and any interference with that right by the Legislature might be prohibited by the Constitution; but the defendants are going to in fact abandon the bridge of 1884, and the bridge referred to by the Legislature in fact goes out of existence. The defendants’ franchise right to cross the river is not interfered with in the slightest degree, simply the manner of crossing is regulated and then only when the defendants completely remove all of the structure that has been declared to be lawful; and the manner of crossing is regulated only to the extent of saying that the defendants must so cross as not to interfere with navigation.

The bridge which the defendants contemplate erecting over Buffalo river will not be an obstruction to any navigation of a practical character for at least two years. When the work of deepening the channel to a sufficient depth to permit navigation therein by lake-going craft and for a distance of about two miles from the south line of lot 65 up the stream shall have been completed, then and not till then will a fixed bridge in any manner obstruct navigation. Before there can be any justification for compelling the defendants to incur the large expense of installing a swing or draw bridge for their traffic across Buffalo river, there must be a condition showing a reasonable, practical necessity therefor. While it may be said that the present plans of river improvement demonstrate that in the execution of these plans a swing or draw bridge will be essential at the place of the present crossing, yet actual excavations and dredging for the purposes of navigation at this point will not occur for a long time. Plans have been adopted placing the excavated channel at points under the defendants’ railroad where a swing or draw bridge at the- location of the present bridge would be utterly useless; modifications of such plans place the proposed channel under defendants’ present bridge and the placing of a new fixed bridge at this point would prohibit the execution of these plans. Defendants cannot be permitted to erect an entirely new bridge, saving only a few courses of stone of substructure, at this time, simply calling it a renewal of a part of their bridge as it existed in 1884 and thus defeat the city in its right to compel the erection of a swing or draw bridge when river improvement and navigation demand it. The city’s right to thus regulate the manner in which the defendants may exercise their right of franchise to cross Buffalo river is paramount and superior to any right the defendants have to cross the river. The present bridge of defendants, while it'existed in 1884, at the time the statute was passed declaring it a lawful structure, will no longer exist when the defendants have done the things they proved on the trial they were going to do. The proof is that the foundations, the abutments and pier are in a greatly damaged condition, cracks existing perpendicularly through courses of stone necessitating rebuilding; that defendants intend removing the entire superstructure, several courses of stone of substructure, make a larger, higher, heavier, more substantial structure, utilizing a few courses of stone of the present abutments and pier, practically making a new foundation and placing thereon an entirely new girder-bridge of modem type. If this is not a new bridge and a new foundation it is difficult to define one. If it is not a “bridge hereafter built” in the language of the statute, the use of one single foundation stone of the old substructure would defeat the right of the city to compel a swing or draw bridge to be erected at any time in the future. The only vested right the defendants have by their franchise and this statute is to cross Buffalo river, a public highway, and use in such crossing the bridge that existed in 1884. When that bridge by reason of any fact goes out of existence, the enforcement of the undoubted prerogative of the city to say that a bridge built to take its place must be of a swing or draw type, when the progress of the work of river improvement and navigation demand it, in no manner infringes upon or imperils defendants’ franchise or any of their vested rights. The only reason why the defendants obtained a franchise permitting it to cross the Buffalo river was that they intended to use such crossing for a public purpose. To allow them to erect a new permanent fixed bridge would permit the exclusion by them of the public from the river for navigation purposes. The purpose of navigating the river is quite as important as the public purpose claimed to be exercised by the defendants in crossing the river. When the defendants propose to abandon and do away with the bridge that existed in 1884, the Legislature has undoubted power to do whatever is necessary and proper for the public welfare in the control and regulation of the way and manner in which a new bridge is to be built for the use of the defendants in crossing the river under their franchise. That power has been expressed so as to provide that, when river improvement work and navigation require it, such crossing of that liver, a public highway, must be by swing or draw bridge; and the defendants have no legal right to erect any other kind for permanent use.

The plaintiff through its common council and commissioner of public works has notified defendants that all bridges hereafter constructed across the Buffalo river shall be draw or lift bridges. Section 9 of chapter 527 of the Laws of 1906 provides that all railroad bridges rebuilt over the proposed new or improved channel of the Buffalo river shall be such bridges as may be determined upon by the common council; that such bridges shall be built at the expense of the railroads. The validity of this statute is attacked by the defendants upon the ground that it is unconstitutional; that it is the taking of property without due process of law. The fact that defendants are compelled to build their own bridges at their own expense in no way infringes upon their constitutional rights. The defendants assert that the exigencies of their business compel them to build a new bridge. The statute in no manner compels the defendants to rebuild this bridge; the plaintiff is not seeking to compel defendants to build a bridge; the simple fact is that defendants have decided and determined independently of the statute that they will build a new fixed bridge and are threatening so to do; and the plaintiff seeks simply to prevent the building of a bridge that will prohibit navigation. The reasonable regulation by plaintiff by any means within its power of the maimer in which defendants shall construct their new bridge does not infringe upon any constitutional rights of defendants, even if it does compel them to pay the expense of complying with such regulations. So far as chapter 527 of the Laws of 1906 applies to the issues raised in this action, it is a valid enactment.

The defendants claim the right to erect a new girder fixed bridge in place of the one now in use, and that such structure when completed will secure to the defendants the same right to maintain and operate it as a fixed bridge that they have had concerning the present bridge since 1884. The defendants are about to erect such a bridge; and such act being without right or authority, they will be restrained from so doing by the decree to be entered hereon.

The rights of the parties do not demand the immediate execution of such decree. To immediately restrain defendants from building a fixed bridge means that a temporary fixed bridge could not be built and that nothing but a swing or draw bridge would be a lawful structure. To manufacture a swing or draw bridge suitable for the excavated channel and install it in operation would take months if not years of time. The defendants’ present bridge has been condemned by the public service commission; it is unsafe for further use; it is in defective condition; it is far too light for defendants’ traffic. The defendants must provide some temporary means of crossing the river, and they cannot comply at once with such a decree. The defendants have upon the ground a new girder-bridge that can be assembled and put in place of the present bridge, upon foundations to be rebuilt, in a comparatively short time. Such temporary use of the material at hand will be without detriment to its use in some other structure in the future. A swing or draw bridge will not actually be needed within two years; actual dredging will not begin at the location of the bridge before that time, and practical navigation will not be possible for a long time. In view of these facts I am disposed to suspend the operation of the restraining and injunctive features of the judgment to he entered hereon for eighteen months. If at the expiration of that time it should appear that the necessities of river improvement work and navigation do not demand a swing or draw bridge, application may- he made to this court on the foot of this judgment for such further suspension of the restraining and injunctive provisions of the judgment as the court at that time may grant.

Judgment accordingly ordered in favor of the plaintiff against the defendants, with costs.

Judgment accordingly.  