Lehigh Valley R. Co. v. Canal Bd.

• Decision Date: 20 February 1912
• Citation: 97 N.E. 964,204 N.Y. 471
• Parties: LEHIGH VALLEY R. CO. v. CANAL BOARD et al.
• Court: New York Court of Appeals Court of Appeals

204 N.Y. 471

97 N.E. 964

LEHIGH VALLEY R. CO.

v.CANAL BOARD et al.

Court of Appeals of New York.

Feb. 20, 1912.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by the Lehigh Vally Railroad Company against the Canal Board and others. From a judgment of the Appellate Division (146 App. Div. 151,130 N. Y. Supp. 978) affirming a decree of the Special Term for plaintiff (69 Misc. Rep. 251,125 N. Y. Supp. 227), defendants appeal. Modified and affirmed.

Thomas Carmody, Atty. Gen., for appellants.

Frank H. Platt, for respondent.

CULLEN, C. J.

The action is brought to restrain the defendants, who are state officers and contractors engaged in the construction of the new barge canal, from interfering with the plaintiff's bridge across the Seneca river, which is being canalized to form part of the new canal. The first structure was erected by the Southern Central Railroad Company in the year 1871 to carry its railroad across the river. This bridge was replaced by the present structure in 1888, about which year the plaintiff acquired the road of the Southern Central. The proposed improvements of the river require that the bridge be raised 7.8 feet above its present height, and that certain of the piers on which the superstructure now rests should be removed, thus practically necessitating the construction of a new bridge, and the substantial controversy, tersely stated, is which shall pay for the new bridge, the railroad company, or the state. The Special Term decided in favor of the plaintiff that the expense of the reconstruction of the bridge is to be defrayed by the state, and the Appellate Division has affirmed that decision.

We agree with the disposition of the case made by the courts below except in one respect, the form of the judgment,and concur in the opinion written by Presiding Justice McLennan of the Appellate Division, but shall add something as to the constitutionality of the statute as construed by the courts below and by this court, which has been vigorously assailed by the learned Attorney General. The trial court found as a matter of fact that the Seneca river at the point where plaintiff's bridge crosses it was in 1871, at the time of the erection of the first structure, and ever has been, impossiblc of navigation by either steam or sail boats, and that, therefore, its construction was authorized under subdivision 5, § 28, of the general railroad act of 1850 (chapter 140), which was the statute extant at the time plaintiff's predecessor constructed its railroad, so the Appellate Division held that the bridge was a lawful structure.

That court acceded to the contention on behalf of the appellants that, the Seneca river having been a navigable stream, title to the bed of which still remained in the state, that it was at all times competent for the Legislature to increase its navigability without compensation for injuries occasioned thereby. But the court further held that, while the Legislature might have placed on the plaintiff and the owners of other structures across the river the burden of removing or altering those structures so as not to interfere with the proposed improvement of the river, still, under the statute enacted for the construction of the barge canal, the state had assumed for itself the cost and expense of building the bridges. The reasons for the construction of the statute adopted by the court below are sufficiently given in its opinion, and need not be repeated here.

[1] This brings us to the question of the constitutionality of the statute under the construction we have given to it. The Constitution prescribes (article 8, § 9): ‘Neither the credit nor the money of the state shall be given or loaned to or in aid of any association, corporation or private undertaking.’ It is contended that, as the Legislaturemight have compelled the plaintiff and the other companies owning and maintaining bridges across the river to remove or reconstruct them at their own expense, the assumption of the expense by the state was in effect a gift of the state's money to the corporation. We think not. In Town of Guilford v. Supervisors of Chenango County, 13 N. Y. 143, page 149, the broad doctrine was laid down: ‘The Legislature is not confined in its appropriation of the public moneys, or of the sums to be raised by taxation in faver of individuals, to cases in which a legal dumand exists against the state. It can thus recognize claims founded in equity and justice in the largest sense of these terms, or in gratitude or charity.’ That doctrine was abrogated by the constitutional amendments of 1895 already quoted. From that time public moneys, whether of state or municipality, could no longer be expended in the exercise of gratitude or charity. Matter of Mahon v. Bd. of Education, 171 N. Y. 263, 63 N. E. 1107,89 Am. St. Rep. 810. But the amendment did not prevent the Legislature from recognizing claims founded on equity and justice, though not such as could have been enforced in a court of law if the state had not been immune from suit. The cases of Cole v. State, 102 N. Y. 48, 6 N. E. 277, and O'Hara v. State, 112 N. Y. 146, 19 N. E. 659, 2 L. R. A. 603, 8 Am. St. Rep. 726, are clear authorities to this effect. The doctrine contended for by the Attorney General would be destructive of legislation which has existed and rights under which have been enforced unchallenged...