In re Burns

• Decision Date: 25 January 1898
• Parties: In re BURNS.
• Court: New York Court of Appeals Court of Appeals

155 N.Y. 23

49 N.E. 246

In re BURNS.

Court of Appeals of New York.

Jan. 25, 1898.

Appeal from supreme court, appellate division, Fourth department.

In the matter of the petition of James W. Burns for the appointment of commissioners to assess damages to riparian owners on Roaring brook. From a judgment of the appellate division (44 N. Y. Supp. 930) reversing a judgment in favor of petitioner, he appeals. Reversed.

Watson M. Rogers, for appellant.

C. S. Mereness, for respondents.

O'BRIEN, J.

The only question involved in this appeal is whether the statute (chapter 338, Laws 1896) is a valid law. The court below has held it to be invalid, because in conflict with the constitution of the state. A case which presents the question of the validity of an act of the legislature is always important in itself, but this case derives additional importance from the fact that, incidentally, the decision involves the validity of numerous other statutes of the same character. The title of the act is ‘An act declaring 'Roaring brook,’ in the town of Martinsburgh, in the county of Lewis, a public highway, and providing means for the assessment of damages to riparian owners thereof.' The first section provides that ‘Roaring brook, in the town of Martinsburgh, in the county of Lewis, from its junction with Black river to the head waters of said brook, in the town of Martinsburgh, is hereby declared to be and is hereby constituted a public highway, for the purpose of floating logs, timber and lumber down said stream.’ The second section makes provision for the assessment and payment of damages to riparian owners injured by the use of the stream for the purposes declared in the statute. The statute contemplates the taking of property by the exercise of the right of eminent domain. The courts below have held that the use was sufficiently public to save the statute from attack on the ground that there was contemplated a taking of private property for merely private purposes. It cannot be doubted that a public highway, intended for public communication between the Adirondack regions of the state and the Great Lakes, and for the transportation of lumber, timber, and logs, must in some degree, at least, be commercially beneficial to the public. It may be, as suggested, that the passage of this statute was stimulated by purely private interests. But that is largely true of every movement for opening highways in the country, and streets or avenues in cities. They originate in many cases in the persistent demands of one or more property owners who desire to bring their property into the market, or to procure better access to it, and thus promote their private interests. It is, no doubt, true that many useful public improvements have originated in efforts to promote private interests, and that possibly may be the origin of this statute. But a statute is not to be condemned on the ground that it originated in private interests, and was intended in some degree to subserve private purposes. If every act originating in such motives should be declared void, it is to be feared that there are too many statutes that would not stand such a searching test. So long as the use intended is not restricted to private parties or private interests, but is open to the whole public, it is no valid objection to the act that it will benefit one person, or some class of persons, more than others. The question as to whether, in any given case, the use is public or private, is judicial, and must be determined in the end by the courts. We think, however, that the use by the public of a waterway, such as that described in this statute, to transport property from the interior of the state to the sea or the Great Lakes, is a public use, within the fair meaning of the constitution; and, the legislature having determined the necessity for the exercise of the right of eminent domain, the validity of the act is not open to question on the ground that the use is not public. People v. Smith, 21 N. Y. 595;Heyward v. Mayor, etc., 7 N. Y. 324;In re Townsend, 39 N. Y. 174;Commissioners v. Armstrong, 45 N. Y. 243;In re Fowler, 53 N. Y. 60;Waterworks Co. v. Bird, 130 N. Y. 249, 29 N. E. 246;In re Niagara Falls & W. Ry. Co., 108 N. Y. 375, 15 N. E. 429;Id., 121 N. Y. 319, 24 N. E. 452.

The conflict between this act and the constitution was found in quite another direction. There can be no doubt that the bill is private or local, within the meaning of the prohibition against the passage of such bills in certain cases contained in section 18, art. 3, of the constitution. The legislature is forbidden to pass a private or local bill ‘laying out, opening,altering, working or discontinuing roads, highways or alleys'; and this act was held to be in conflict with the constitution, since it provided for opening or laying out a highway. The question is whether a private or local act declaring a waterway or stream open for use to the public is fairly comprehended within the constitutional prohibition against passing such acts laying out or opening highways. It is quite true that, in a certain sense, streams and waterways are highways. The term ‘highway’ is frequently used in a very broad sense. The sea is said to be the great public highway of nations. The canals, and all public rivers, and the Great Lakes are certainly highways. So are all the railroads. But surely the framers of the constitution did not use the term in any such broad and extensive sense. Manifestly, it is there used in a much more limited sense. The term, in its ordinary and popular sense, refers to the country roads under the management and control of the local authorities of the several towns or counties of the state. It does not even include streets or avenues in cities, as this court has...