12 N.Y. 268, Follett v. People

Citation12 N.Y. 268
Party NameFOLLETT and others, Canal Commissioners, v. THE PEOPLE.
Case DateMarch 01, 1855
CourtNew York Court of Appeals

Page 268

12 N.Y. 268

FOLLETT and others, Canal Commissioners,

v.

THE PEOPLE.

New York Court of Appeal

March 1, 1855

Page 269

[Copyrighted Material Omitted]

Page 270

COUNSEL

Ogden Hoffman, attorney general, for plaintiffs in error.

J. H. Reynolds, for the defendant in error.

OPINION

GARDINER, C. J.

The bill of exceptions in this case presents two principal questions: First, did the act of 1823, and those amending the same, oblige the pier proprietors to erect and maintain the Columbia-street bridge over the basin in the city of Albany? And if so, then, Second, has that obligation been discharged or materially modified by the act of 1849.

The supreme court in 1844 determined that the maintenance of this bridge was a duty imposed upon the proprietors by the statute first mentioned. ( The People v. Cooper, 6 Hill, 516.) As no attempt was made to review that decision,

Page 271

the judgment in that case, confirmed by the acquiescence of those interested to contest it, must at least be deemed strong presumptive evidence of the law. The examination in this case, with the aid of able arguments, has satisfied me that the decision was right and should control that of this court on the same question.

The pier, authorized by the act of 1823, was to be constructed upon the property of the state, in a navigable river, from funds to be raised by subscription. The assent of the state, as the act recites, was therefore necessary; but the title to the structure, when completed, was to vest in the subscribers, and the advantages directly accruing from it were for their exclusive benefit. The pier would interrupt the access to the waters of the Hudson river, which the public had enjoyed previously; and the grant of the land and of other privileges conferred by the state was therefore subject to the condition, that the communication between the main land and the river should be continued by means of bridges extending from the former to the pier, where deemed necessary by the canal commissioners. The bridges were a part of the work to be performed. They were to be constructed under the supervision of the same agents, and out of the same fund with the pier itself.

I have not quoted the language of the statute, but in its whole scope and spirit it looks to a continuance of the communication which would otherwise be cut off, and which, if important to the public, was indispensable to give value to the pier as private property. The erection of the pier without the permission of the legislature would have been a nuisance, by interrupting the navigation of the river and the access to the main channel from the western shore. This was avoided by a grant of land covered by the pier and of an easement in or over the reserved lands of the state for the erection of the necessary bridges. The Columbiastreet bridge was one of these. The grant of the easement did not terminate with the erection of the bridge, nor when

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it became dilapidated and useless. This the pier owners would be the last to admit; they, in that event, could not enter upon land covered by the water of a navigable river, at tide water, to repair or reconstruct the bridges, nor could any one else, without the permission of the legislature. The state assumed no such responsibility by the statute in question, and...

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4 practice notes
  • 43 N.Y. 399, Coster v. City of Albany
    • United States
    • New York New York Court of Appeals
    • January 24, 1871
    ...granted to the pier proprietors. (Hart v. Mayor, supra, also 3 Paige, 216, 217; Smith v. Comptroller, 18 Wend., 662-3; Follett v. People, 12 N.Y. 276.) The right of city to collect wharfage also remained. (Mayor v. Trowbridge, 5 Hill, 71-73; Buckbee v. Brown, 21 Wend., 112.) The basin was n......
  • 45 N.Y. 580, McHenry v. Hazard
    • United States
    • New York New York Court of Appeals
    • May 23, 1871
    ...192); Hinman v. Judson (13 Barb., 629); Oxford City Bank v. Leonard (20 How., 193); Dobson v. Pearce (12 N.Y. 159); Crary v. Goodman (12 N.Y. 276); Mirfield v. Bacon (24 Barb., 154); Bartlett v. Judd (23 Barb., 262). ANDREWS, J. The power of a court of equity to compel the surrender and can......
  • 65 N.Y. 57, Burbank v. Fay
    • United States
    • New York New York Court of Appeals
    • January 1, 1875
    ...have no power except what is conferred by the statute, and had no authority to close this basin. (1 R. S., 229, art. 4; Follett v. People, 12 N.Y. 276; Higgins v. Reynolds, 31 Id., 151; R. and S. R. R. Co. v. Davis, 43 Id., 137; Hicks v. Van Doorn, 42 Id., 47; Phillips v. Thompson, 1 J. Ch.......
  • 42 N.Y. 143, Shumway v. Shumway
    • United States
    • New York New York Court of Appeals
    • March 18, 1870
    ...273); Lanke v. Ropke (1 Duer, 701); Chautauqua County Bank v. White (23 N.Y. 348, 9); Cooke v. Passage (4 How., 360); Crary v. Goodman (12 N.Y. 268). E. G. Lapham, for the respondent. FOSTER, J. Previous to the adoption of the Code, the thirty seventh section of "Title one. Of the acti......
4 cases
  • 43 N.Y. 399, Coster v. City of Albany
    • United States
    • New York New York Court of Appeals
    • January 24, 1871
    ...granted to the pier proprietors. (Hart v. Mayor, supra, also 3 Paige, 216, 217; Smith v. Comptroller, 18 Wend., 662-3; Follett v. People, 12 N.Y. 276.) The right of city to collect wharfage also remained. (Mayor v. Trowbridge, 5 Hill, 71-73; Buckbee v. Brown, 21 Wend., 112.) The basin was n......
  • 45 N.Y. 580, McHenry v. Hazard
    • United States
    • New York New York Court of Appeals
    • May 23, 1871
    ...192); Hinman v. Judson (13 Barb., 629); Oxford City Bank v. Leonard (20 How., 193); Dobson v. Pearce (12 N.Y. 159); Crary v. Goodman (12 N.Y. 276); Mirfield v. Bacon (24 Barb., 154); Bartlett v. Judd (23 Barb., 262). ANDREWS, J. The power of a court of equity to compel the surrender and can......
  • 65 N.Y. 57, Burbank v. Fay
    • United States
    • New York New York Court of Appeals
    • January 1, 1875
    ...have no power except what is conferred by the statute, and had no authority to close this basin. (1 R. S., 229, art. 4; Follett v. People, 12 N.Y. 276; Higgins v. Reynolds, 31 Id., 151; R. and S. R. R. Co. v. Davis, 43 Id., 137; Hicks v. Van Doorn, 42 Id., 47; Phillips v. Thompson, 1 J. Ch.......
  • 42 N.Y. 143, Shumway v. Shumway
    • United States
    • New York New York Court of Appeals
    • March 18, 1870
    ...273); Lanke v. Ropke (1 Duer, 701); Chautauqua County Bank v. White (23 N.Y. 348, 9); Cooke v. Passage (4 How., 360); Crary v. Goodman (12 N.Y. 268). E. G. Lapham, for the respondent. FOSTER, J. Previous to the adoption of the Code, the thirty seventh section of "Title one. Of the acti......