
    Charles Kerr, App’lt, v. The West Shore Railroad Co., Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed June 2, 1891.)
    
    1. Eminent domain—Right op bipabian owneb—Dbaw-bbidge in bailBOAD BBIDGE ACBOSS BAY.
    Where a riparian owner has been compensated for land under water taken by a railroad crossing a bay or indentation in front of his property, he is not entitled to have a draw-bridge erected in the road to permit the passage of vessels to his property, unless the bay was capable of and accustomed to be generally navigated.
    
      2. Same.
    That a vessel of light draft might at certain stages of the tide get nearer the shore than it could when the crossing was erected does not make it, in a general sense, a navigable part of the river.
    8. Same.
    The restoration of a private road leading to the docks upon a river is not a duty imposed upon a railroad company, and its loss or destruction must be deemed compensated by the award made by the commissioners in the condemnation proceedings.
    Appeal from a judgment of the general term of the third judicial department, which affirmed a judgment of the special term.
    The defendant is the successor of the New York, West Shore & Buffalo Eailway Company, a corporation which prior to the commcem.ent of this action had constructed a railroad along the west shore of the Hudson river partly upon and partly in front -of lands owned by the plaintiff.
    
      The plaintiff was the owner of a farm in the town of Marlborough, Ulster county, bounded on the east by the Hudson river and extending from the Orange county line northerly 4,000 feet. In 1876 the state made to him a grant of lands under water extending along the whole, front of said farm. The railroad was constructed partly upon the upland, partly upon land under water granted to the plaintiff, and partly upon land under water easterly of or outside of the plaintiff’s grant.
    Upon the southerly portion of plaintiff’s lands were two small docks at which vessels landed for freight and passengers before the construction of the railroad, and from which a road ran northerly through the plaintiff’s farm to the highway leading to the village of Marlborough.
    Upon the northerly part of the plaintiff’s premises there was a small bay extending into a stream called Jews’ creek up which for a short distance the tide ebbed and flowed.
    There was also a dock on this bay near the mouth of the creek where sand was shipped upon scows and sail vessels.
    The railroad crossed this bay a considerable distance from the shore line, and at the most northerly part of plaintiff’s premises was entirely outside of the land under water granted to the plaintiff.
    The two docks mentioned were wholly within the strip of land acquired by the railroad. Across the bay aforesaid the railroad was constructed upon an embankment of earth and stone the greater part of the way, but about opposite the mouth of Jews* creek there was an iron bridge seventy feet in length, the bottom of which was four feet above high water.
    In February, 1882, the commissioners of the land office made a grant to the railroad company of land under water upon which the road wás constructed, and subsequently the said railroad company instituted proceedings to acquire the title to plaintiff’s lands and such proceedings were thereupon had that an award of three thousand dollars was made and confirmed and paid by the railroad company to the mortgagee of the property as provided by the final order of the court.
    This action was commenced in 1877, and alleged the destruction of the docks aforesaid, the maintenance of an embankment across the bay at the mouth of Jews’ creek, which prevented the plaintiff from navigating said bay, and asked judgment that the defendant restore the highway leading to the docks and the water channel leading to the bay at Jews’ creek so as not unnecessarily to impair their usefulness.
    
      William Lounsbery, for app’lt; F. L. Westbrook, for resp’t.
    
      
       Affirming 25 N. Y. State Rep., 1086.
    
   Brown, J.

The proceedings taken by the New York, West Shore & Buffalo Railway Company to acquire a right of way across the lands now .owned by the plaintiff were effectual to vest in the railway company whatever title plaintiff or his grantors had either in the upland or in the land under the waters of the river. It is not a valid objection to proceedings taken by a railroad company to acquire lands for the purposes of its incorporation that it is under the waters of a navigable stream, and the titles which individuals may have acquired therein by grant from the state may be taken by the exercise of the power of eminent domain equally' with the upland. In re N. Y. C. & H. R. R. R., 77 N. Y., 248 ; N. Y., W. S. & B. R. Co. v. Walsh, 27 Hun, 57; affirmed on this point in 89 N. Y., 453.

Having paid the compensation awarded by the court for the land taken above and below high water mark in the manner' provided in the order confirming the commissioner’s report, the railway company owed no further duty to the plaintiff except such as was enjoined upon it by law.

This action seeks to compel the performance by the defendant of the duty imposed upon it by subd. 5, § 28, of the general railroad act, chap. 140, Laws of 1850, and the claim is:

First. That it has failed to restore a highway leading to the plaintiff’s docks on the southerly portion of his premises, across which the railroad was constructed, and
Second. That it has failed to restore the channel through which, before the construction of the road, vessels sailed into the bay near the mouth of Jews’ creek.

Upon the trial the plaintiff wholly failed to establish the fact that there was a highway leading to the docks. The court found that there was none and the evidence would not sustain any other conclusion. There was a private road leading from the highway across plaintiff’s lands to the dock, but the restoration' of such a road was not a duty imposed upon the railroad company, and its loss or destruction must be deemed compensated by the award made by the commissioners in the condemnation proceedings.

We need not consider in this case whether the defendant would be under a legal obligation to give an owner of lands under water, a part of which was taken for the railroad right of way, a crossing to that part of his grant which lies outside of the railroad, or whether § 44 of the general railroad act, relating to farm crossings, is applicable to property so situated.

Ho claim for such a crossing is made in the complaint and there is no finding or request to find that the plaintiff was the owner of any land under water outside of the railroad, and we are not called upon to determine the existence of a fact which the trial court was not asked to find.

The plaintiff, therefore, has no cause of action against the defendant resting upon any unlawful interference with his private rights in the property upon which the railroad was constructed or for damages to his adjoining property. All rights which plaintiff or his grantors had in the land have been duly acquired and áre now vested in the defendant. It remains to be seen whether he has any cause of action growing out of any interference with his rights in the navigable waters of the river.

The commissioners of the land office were authorized by the legislature to grant to the railroad company any land belonging to the people of the state required for the purposes of its road, and under the grant made by such commissioners to the defendant’s predecessor it acquired not only such reserved rights as the state had in the land theretofore granted to the plaintiff, but it also acquired the title of the state to such lands as the road occupied under water in front of plaintiff’s premises not included in the plaintiff’s grant, and under this grant and the condemnation proceedings the defendant’s title to its roadbed is apparently perfect and complete.

It appears that when the road was constructed across the bay,, near the mouth of Jews’ creek, it was about one hundred feet westerly from the channel of the river and several hundred feet, easterly of the shore line, and its effect was to intercept communication between the shore and the channel of the river and to. prevent the passage of vessels to a dock on the plaintiff’s property, near the mouth of the creek, as had been done before the road was constructed, and the question is presented, what duty does a railroad company under such circumstances owe to the owner of the upland?

The plaintiff’s private rights of property having been acquired by the defendant, the duty, if any, is not special to this particular case, but is such as is owing to every riparian owner whose access, to the channel of the river is cut off by the railroad embankment. The railroad company is the licensee of the state and its obligations are the same as would rest upon the state if engaged in the construction of a public work, except so far as they may have been enlarged by statute.

It is familiar law that the shores of navigable rivers and streams and the lands under the waters thereof belong to the state vnthin whose territorial limits they lie, and may be appropriated by the state to all municipal purposes. The state may authorize the construction of bridges, piers, wharves or other obstructions in navigable waters, and when such structures are not obnoxious to the regulations of congress and do not come in conflict with the paramount authority of the United States they are not nuisances. Willson v. The Blade Bird Creek Marsh Co., 2 Peters, 245; Gilman v. Philadelphia, 3 Wall., 713.

In Willson's case, Chief Justice Marshall said: “ The measure authorized by this act stops a navigable creek and must be supposed to abridge the rights of those who have been accustomed to. use it. But this abridgment, unless it comes in conflict with the constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court, can take no cognizance.”

There is no statute of congress applicable to this case. Jews” creek is not a navigable stream, and the question presented relates solely to the small bay of the river crossed by the railroad. The legislature may grant or confer an exclusive privilege in ■ tide water provided the right granted does not trench upon the powers granted to congress. People v. Tibbetts, 19 N. Y., 523 ; People v. Canal Appraisers, 33 id., 487; People v. Ferry Co., 68 id., 71. And the state may, for the purposes of commerce, partially hinder navigation by authorizing the construction of docks, piers and bridges which are within the demands of commerce and to which navigation to a certain extent is subject. D. & H. C. Co. v. Law rence, 2 Hun, 163; Bedlow v. N. Y. F. D. Co., 112 N. Y., 274; 20 N. Y. State Rep., 707.

The authority to convey lands under water for railroad purposes was conferred upon the commissioners of the land office by the general railroad law of the state.

The power is to be exercised for the benefit of the public and to promote commerce and the public interests, and the construction of the railroad upon the lands granted was a lawful act and not a nuisance. If it impaired the navigation of the river it is sufficient to say that the state authorized it. But the claim made by the appellant is that although it may be lawful to construct a railroad in the river, yet the owner of upland fronting upon every navigable bay or indentation in the shore across which the railroad passes is entitled to have a draw bridge erected in the road to permit the passage of vessels to his property, and this right of the upland owner is said to flow from the section of the statute which provides that every stream of water, watercourse or highway intersected or touched by the railroad shall be restored by the railroad company “ to its former state or to such state as not unnecessarily to have impaired its usefulness.” This provision was designed by the legislature to protect public rights, and so far as it applies to a navigable river it is the commerce thereon and the general right of navigation that is intended to be protected.

Hence it has reference to such streams and water courses as were before the construction of the road capable of and accustomed to be generally navigated. Public interests and not private convenience was thus guarded and protected.

27o general commercial interest was infringed in this case. The bay in question was not navigable in the ordinary meaning of that term. That a vessel of light draft might at certain stages of the tide get nearer the shore than it can now in consequence of the existence of the road does not make it, in a general sense, a navigable part of the river.

The plaintiff’s right to navigate the river is not impaired, only the approach to the shore of his property.

I do not see wherein the plaintiff’s case differs from that of Gould v. H. R. R. Co., 6 N. Y., 522, or Getty v. H. R. R. Co., 21 Barb., 617, or Ormerod v. West Shore R. R. Co., 21 Blatch., 106.

In the first case cited the plaintiff owned the upland, but had no title to the land below high water mark. The defendant’s road was constructed between high and low water mark under authority of the legislature and cut off the plaintiff’s access to the river. It was held in this court that the plaintiff had no private right in the waters of the river or in the shore and was not entitled to recover damages occasioned by the construction of the railroad. In Getty's case the plaintiff owned a farm situated on a bay or indentation of the river across the mouth of which the defendant had constructed its road, thus preventing access of vessels to the plaintiff’s land. Hnder the provisions of defendant’s charter he claimed that he was entitled to have a drawbridge constructed in the railroad to permit the passage of vessels to and from his docks.

The supreme court held that the word “ bay ” mentioned in the section referred to, which required the defendant to construct .draw bridges in certain bays “ to provide for free passage of such vessels as heretofore had passed or now can pass, etc.,” meant only such bays as had a general navigation and such as the public had an interest in.

Ormerod’s case was an action to restrain the construction of a railroad which would cut off the approach of vessels to certain brick yards situated within a small bay of the river.

The plaintiff was the owner of a sailing vessel navigating the river and having a contract to carry brick from said yards to the city of New York. The land under water where the road was constructed had been granted to the owner of the brick yards, and defendant had taken proceedings to acquire title thereto under the general railroad law.

The federal court held that there was no interference with the general navigation of the river, and that as the state had granted title to the lands under water, that title could be acquired by the defendant, and that the question was one solely of compensation between the defendant and the land owner.

We are of the opinion, therefore, that this plaintiff is not, as a mere riparian owner, entitled to the relief asked for and that, as such, he has by the construction of the railroad sustained no legal injury. So far as he had an ownership in the land taken he has been duly compensated.

The defendant, however, appears to have recognized the propriety of affording some access to the bay in question and constructed a bridge seventy feet in length under which scows can pass to and from the river, and in so doing it fully complied with the obligation imposed upon it by the legislature.

There is nothing in Langdon v. The Mayor, 93 N. Y., 129; Williams v. The Mayor, 105 id., 420 ; 7 N. Y. State Rep., 529, or Kingsland v. The Mayor, 110 N. Y., 569 ; 18 N. Y. State Rep., 701, that conflicts with the views here expressed.

The fact that the plaintiff has been compensated in the manner provided by law for the rights of ■which he has been deprived and the loss of property he has sustained by the construction of the railroad, sufficiently distinguishes those cases from the one under consideration.

The judgment should be affirmed, with costs.

All concur, except Parker, J., not sitting.  