Kerr v. West Shore R. Co.

• Decision Date: 02 June 1891
• Citation: 27 N.E. 833,127 N.Y. 269
• Parties: KERR v. WEST SHORE R. CO.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 269

27 N.E. 833

KERR

v.WEST SHORE R. CO.

Court of Appeals of New York, Second Division.

June 2, 1891.

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 Railway Company, a corporation which, prior to the commencement 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 Marl-borough. 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-vessls. 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 70 feet in length, the bottom of which was 4 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 was 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 $3,000 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 Lounsberry, for appellant.

F. L. Westbrook, for respondent.

BROWN, J., ( after stating the facts as above.)

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 New York, etc., R. Co., 77 N. Y. 248; In re New York, etc., R. Co., 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 commissioners' 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 subdivision 5, § 28, of the general railroad act, (chap. 140, Laws 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 section 44 of the general railroad act, relating to farm crossings, is applicable to property so situated. No 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 are 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...