Cortlandt v. New York Cent. R. Co.

• Citation: 265 N.Y. 249,192 N.E. 401
• Parties: VAN CORTLANDT et al. v. NEW YORK CENT. R. CO.
• Decision Date: 02 October 1934
• Court: New York Court of Appeals

265 N.Y. 249

192 N.E. 401

VAN CORTLANDT et al.

v.NEW YORK CENT. R. CO.

Court of Appeals of New York.

Oct. 2, 1934.

Action by Anne S. Van Cortlandt and others against New York Central Railroad Company. From a judgment of the Appellate Division (238 App. Div. 132, 263 N. Y. S. 842), which reversed on the law and the facts a judgment of the Special Term dismissing the complaint and made new findings of fact and conclusions of law (139 Misc. 892, 250 N. Y. S. 298), the plaintiffs and the defendant appeal.

Judgment of the Appellate Division reversed, and that of Special Term affirmed, and the complaint dismissed.

Appeal from Supreme Court, Appellate Division, Second department.

Jacob Aronson, Frederick L. Wheeler, and Kenneth O. Mott-Smith, all of New York City, for defendant-respondent-appellant.

E. J. Dimock, M. Gregg Latimer, Cornelius O. Donahue, and Eleanor S. Burch, all of New York City, for plaintiffs-appellants-respondents.

CRANE, Judge.

The plaintiffs have sought by this action to obtain a judgment declaring the rigid and immovable railroad bridge of the defendant over the Croton river to be an unlawful obstruction and a public nuisance, and further directing its removal. The trial court dismissed the complaint on the ground that the Croton river was nonnavigable and that, moreover, the plaintiffs were guilty of laches in failing to make any move or objection for a period of over forty years. The Appellate Division reversed many of the findings of fact and conclusions of law, made new findings, but failed to afford the plaintiffs the asked for relief. Both sides have appealed; the plaintiffs because an immediate injunction has been denied them, and the defendant because the court has found the river to be navigable, the crossover a public nuisance, the plaintiffs not barred by laches and possibly entitled to relief later when conditions have changed. As there has been a reversal on the facts this court has jurisdiction to review the facts and could, therefore, determine whether the evidence is such as to sustain the new findings made by the Appellate Division. In the view which we have taken of the case we think it unnecessary to pass on many of these questions, as we are of the opinion that the plaintiffs cannot maintain this action for the reasons which we shall attempt to state.

The Hudson River Railroad Company was chartered and organized by chapter 216 of the Laws of 1846, entitled, ‘An Act to Authorize the Construction of a Railroad from New York to Albany.’ Section 15 of the act provided: ‘§ 15. The said corporation is hereby authorized to build or erect a bridge over the Spuytenduyvel creek and other navigable streams or inlets, for the passage of the said road or ways, from or to the city of New York. Such bridges shall be substantially constructed, and shall contain a draw of sufficient width to admit the passage of vessels adapted to the navigation of said river, streams or inlet, with standing masts, and shall be so attended as not to obstruct, delay or hinder, the progress of any vessel navigating said river. They are also required to construct such bridges as may be necessary to provide for the free passage of such vessels and boats as heretofore have or now can pass into and from the same, the bays that may be crossed by said railroad; and if any wharf or dock shall be cut off by the said railroad, the said company shall extend or so improve the same as to restore it to its former usefulness, so far as it may be practicable to do so. And the owner or owners thereof are hereby authorized to occupy the river front, outside of said railroad, for the erection and use of wharves or docks.’

The defendant is the successor to the Hudson River Railroad Company.

The courts below have treated this act as if if required a drawbridge over any stream which was navigable in fact or in law at any time; such as came within the definition of ‘navigability’ found in the court decisions. We think the act must be interpreted in the light of legislative intent. The plaintiff's claim rests entirely upon the meaning of this act. No question of federal authority is involved in the case. If the Croton be nonnavigable the consent of the Secretary of War to the erection of the railroad bridge was unnecessary; if navigable, nowhere does it appear that such consent was not given. Egan Hart, 165 U. S. 188, 17 S. Ct. 300, 41 L. Ed. 680. The state of New York may improve its highways in such fashion as it deems best for travel even to the extent of erecting bridges without draws over navigable streams unless or until some act of Congress takes cognizance of the matter. Until Congress acts the state may act. In this charter to the reilroad the state has provided for drawbridges in certain cases, but, bearing in mind its power in the absence of federal control, we must decide what are those cases, what the charter act means. No rights, we may repeat, arise from the Croton being navigable or unnavigable. The plaintiffs' claim rests entirely upon the statutes. The nature of a navigable stream is stated in United States v. Holt State Bank, 270 U. S. 49, 56, 46 S. Ct. 197, 199, 70 L. Ed. 465, as follows: ‘That they are navigable in fact when they are used, or are susceptible of being used, in their natural and ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water; and further that navigability does not depend on the particular mode in which such use is or may be had-whether by steamboats, sailing vessels or flatboats-nor on an absence of occasional difficulties in navigation, but on the fact, if it be a fact, that the stream in its natural and ordinary condition affords a channel for useful commerce.’ See, also Economy Light & Power Co. v. United States, 256 U. S. 113, 41 S. Ct. 409, 65 L. Ed. 847. The New York definition may be even a little broader. Morgan v. King, 35 N. Y. 454, 91 Am. Dec. 58.

The power of the states over navigable streams in the absence of congressional action may be illustrated by the case of Gilman v. Philadelphia, 3 Wall. (70 U. S.) 713, 720, 18 L. Ed. 96, where bridges without turnspans were erected over the Schuylkill, shutting out the customary passage of sailing vessels to the plaintiff's wharves. ‘Vessels with masts could not pass, and the property of the complainant was rendered less valuable.’ The court said: ‘The injury to the property of the complainants will be entirely consequential. A large city is rising up on the opposite side of the river. The new bridge is called for by public convenience.’ Page 722 of 3 Wall., 18 L. Ed. 96. ‘The defendants are proceeding to build the bridge under the authority of an act of the legislature of Pennsylvania. The Schuylkill River is entirely within her limits, and is ‘an ancient river and common highway of the State.’ For many years it has been navigable for masted vessels for the distance of about seven and a half miles only, from its mouth. * * * It must not be forgotten that bridges, which are connecting parts of turnpikes, streets, and railroads, are means of commercial transportation, as well as navigable waters, and that the commerce which passes over a bridge may be much greater than would ever be transported on the water it obstructs.' Pages 721, 729 of 3 Wall., 18 L. Ed. 96. The plaintiff was denied relief.

Hamilton v. Vicksburg, Shreveport & Pacific R. R., 119 U. S. 280, 281, 7 S. Ct. 206, 30 L. Ed. 393, is another example. The court, through Mr. Justice Field, said: ‘The authority vested by its act of incorporation in the Vicksburg, Shreveport, and Texas Railroad Company to construct a railroad from a point opposite Vicksburg to the State line of Texas, empowered it to construct as part of the road all necessary bridges for the crossing of navigable streams, which might be on its line. * * * What the form and character of the bridges should be, that is to say, of what height they should be erected, and of what materials constructed, and whether with or without draws, were matters for the regulation of the State, subject only to the paramount authority of Congress to prevent any unnecessary obstruction to the free navigation of the streams. Until Congress intervenes in such cases, and exercises its authority, the power of the State is plenary. When the State provides for the form and character of the structure, its directions will control, except as against the action of Congress, whether the bridge be with or without draws, and irrespective of its effect upon navigation.’ See, also, Northern Transportation Co. v. Chicago, 99 U. S. 635, 25 L. Ed. 336.

In granting this charter to the Hudson River Railroad Company in 1846, the state Legislature was not obliged to provide a drawbridge over the Croton river by reason of anything in the United States Constitution or the acts of Congress so far as the record here discloses. No such claim is made. The Legislature was, therefore, free to declare in what instances and cases the drawbridge should be constructed. This is the only point we desire to make for the present, and it merely emphasizes what we have heretofore said, that the intent must govern, not merely the navigability of the streams. Now what was the intent, and did it ever cover such conditions as exist to-day?

In 1846, and for many years thereafter, the Croton was used in navigation, having two or more mills or factories on its banks. Sailing vessels passed through the draw which the defendant maintained in its railroad bridge. By 1891 all had changed, with the inroads of time. The factories and mills had been demolished and all traffic in the river had ceased.

The plaintiffs are the owners of 153.09 acres of land east of the New York Central's railroad tracks and south of Harmon station and the village of Croton. The Croton river runs through their property at least up to the Albany Post road, a distance of 2400 feet east of the...