People ex rel. Lehigh Valley Ry. Co. v. State Tax Comm'n

• Decision Date: 10 January 1928
• Citation: 247 N.Y. 9,159 N.E. 703
• Parties: PEOPLE ex rel. LEHIGH VALLEY RY. CO. et al. v. STATE TAX COMMISSION.
• Court: New York Court of Appeals Court of Appeals

247 N.Y. 9

159 N.E. 703

PEOPLE ex rel. LEHIGH VALLEY RY. CO. et al.

v.STATE TAX COMMISSION.

Court of Appeals of New York.

Jan. 10, 1928.

Certiorari proceeding to review an assessment of special franchises by the People of the State of New York, on the relation of the Lehigh Valley Railway Company and another against the State Tax Commission. From an order of the Appellate Division of the Supreme Court in the Third Judicial Department (220 App. Div. 1, 220 N. Y. S. 467), affirming final orders of the Supreme Court in favor of the Commission, relators appeal by permission.

Affirmed.

See, also, 220 App. Div. 790, 221 N. Y. S. 886.Appeal from Supreme Court, Appellate Division, Third department.

Harold E. Simpson, of Ithaca, for appellants.

Albert Ottinger, Atty. Gen. (Frederic J. Merriman, of Madrid, of counsel), for respondent.

CARDOZO, C. J.

The question in this case is the one left open and undecided in People ex rel. Western New York & P. R. Co. v. State Tax Commission, 244 N. Y. 596, 597, 155 N. E. 911, 912. We are to determine ‘whether the right to erect a railroad bridge resting on abutments on private property across a stream, the bed of which is in private ownership, even though to some extent the river can be used for navigation, constitutes a special franchise unless the bridge so erected does actually interfere and obstruct the use to which the public could subject the stream.’

The Lehigh Valley Railway Company is the owner of two bridges within the limits of the city of Ithaca, one across Cascadilla creek and the other across Six-Mile creek. Both creeks are navigable streams, though only for small craft. Motorboats, rowboats, rafts, and skiffs navigate the two streams above and below the crossings. The railroad company is the owner of the bed of the creeks and also of the banks on which the abutments rest. The bridges do not interfere either with existing navigation, or with any navigation that is possible without deepening the beds.

[1] We think the maintenance of a bridge by a public service corporation across navigable waters involves the enjoyment of a special franchise subject to taxation, though the bed is in private ownership and the bridge is at such a height that navigation is unobstructed.

[2][3][4] The power of the state to regulate or prohibit bridges or other structures above a navigable stream is not at all dependent upon the ownership of the soil below. It is an incident to the public duty to maintain for the public benefit waterways that supply the natural avenues of commerce. Title to the bed of most of the rivers of the state is in the owners of the uplands. Fulton Light, Heat & Power Co. v. State of New York, 200 N. Y. 400, 94 N. E. 199,37 L. R. A. (N. S.) 307. The Hudson and the Mohawk may be exceptions, but the exceptions have their roots in the antiquities of history. Danes v. State, 219 N. Y. 67, 113 N. E. 786;Waterford Electric Light, Heat & Power Co. v. State, 208 App. Div. 273, 203 N. Y. S. 858;Id., 239 N. Y. 629, 147 N. E. 225. So large and important a stream as the Oswego river was held in a leading case to be subject to general rule. Fulton Light, Heat & Power Co. v. State of New York, supra. The difference between the navigable quality of such a river and that of the creeks spanned by these bridges is one solely of degree. We cannot doubt that a railroad corporation, the owner of land along the banks of the Oswego, would be in the enjoyment of a special franchise within the meaning of the statute (Tax Law, § 2, subd. 6; Consol. Laws, c. 60), if it were to throw a bridge across the river, no matter at how high a point above the level of the water. The franchise would be unrelated to the title to the bed below. Trustees of Freeholders & Commonalty of Town of Southampton v. Jessup, 162 N. Y. 122, 56 N. E. 538.

[5][6][7][8] The truth, indeed, is that a bridge, however placed across a navigable stream, is a potential interference with navigation in such a sense and to such a degree as to preclude its construction by force of common right or without the license or approval of the appropriate agencies of government. Cascadilla creek and Six-Mile creek are navigable waters within the accepted definition. Morgan v. King, 35 N. Y. 454, 91 Am. Dec. 58;United States v. Holt State Bank, 270 U. S. 49, 56, 46 S. Ct. 197, 70 L. Ed. 465. Until Congress interferes, the state may develop as it will their navigable quality. International Bridge Co. v. People of State of New York, 254 U. S. 126, 132, 41 S. Ct. 56, 65 L. Ed. 176;United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, 33 S. Ct. 667, 57 L. Ed. 1063. It may say that bridges shall not be built at all if it finds the risk too great. It may say that they may be built, but only upon conditions. Gilman v. Philadelphia, 3 Wall. 713, 18 L. Ed. 96. One who builds or maintains them enjoys a special privilege, not due of common right or as incident to ownership. This uncommon privilege, which, even if now irrevocable, might once have been withheld, is chargeable with a special tax, if the state elects to tax it.

[9][10] We have said that a bridge over a navigable stream is subject in its construction to the veto of the state since in involves a menace, at least potential, to the unobstructed flow of commerce. Interference with navigation can come from piers or other obstacles narrowing the channel. It can come from the elevation of the structure, as where the bridges are so low that boats cannot go under them. These are the main impediments, but not the only ones. There may be dangers from above. Navigation is impeded if objects falling from a bridge cause damage to the craft below, or expose the traveler to peril. The state has the right to say to what extent such perils, even though slight, shall be permitted. It may determine what may be built above its waterways as above its highways on the land. Tilly v. Mitchell & Lewis Co., 121 Wis. 1, 13, 98 N. W. 969,105 Am. St. Rep. 1007; 2 Elliott on Roads and Streets, § 830. Cf. People ex rel. New York Cent. R. Co. v. State Tax Commission, 239 N. Y. 183, 146 N. E. 197, 36 L. R. A. 1520.

[11][12][13][14][15] Support is found for this conclusion in decisions that define the regulatory power of Congress in respect of navigable streams. The United States is not the owner of the beds of such streams within the limits of the states. Whatever power belongs to Congress to control the course of navigation is a branch of its power to regulate interstate and foreign commerce, and is limited thereby. The law is settled, none the less, that its power to prohibitor control the erection of bridges over navigable waters is as broad as any that would belong to it if it had title to the bed. Riparian owners may not escape the effect of its veto by proof that in the circumstances of a given case the obstruction would be negligible. They must submit to the enactments which ordain that in some instances Congress itself must authorize the bridge and that in all instances there must be the license and approval of administrative officers. Cummings v. Chicago, 188 U. S. 410, 429, 23 S. Ct. 472, 47 L. Ed. 525;Stone v. Southern Illinois & M. Bridge Co., 206 U. S. 267, 274, 27 S. Ct. 615, 51 L. Ed. 1057; International Bridge Co. v. People of State of New York, supra; Miller v. New York, 109 U. S. 385, 3 S. Ct. 228, 27 L. Ed. 971; Gilman v. Philadelphia, supra; People v. Hudson River Connecting R. Corporation, 228 N. Y. 203, 217, 218, 126 N. E. 801; River and Harbor Act of March 3, 1899; 30 Stat. 1151, § 9; Mason's U. S. Code, vol. 2, p. 2414, tit. 33, § 401 (33 USCA § 401; Comp. St. § 9971); Blair, Federal Bridge Legislation, 36 Yale L. J. 808, and cases there cited. Much in point is the ruling in a recent case. Economy Light & Power Co. v. United States, 256 U. S. 113, 41 S. Ct. 409, 65 L. Ed. 847. There the question was whether the Desplaines river, a stream navigable by small craft, was subject to the federal statute. ‘We concur in the opinion of the Circuit Court of Appeals that a river having actual navigable capacity in its natural state and capable of carrying commerce among the states is within the power of Congress to preserve for purposes of future transportation, even though it be not at present used for such commerce, and be incapable of such use according to present methods, either by reason of changed conditions or because of artificial obstructions. And we agree that the provisions of section 9 of the Act of 1899 (30 Stat. 1151) apply to such a stream.’ Economy Light & Power Co. v. United States, supra. If Congress may exact a license, so also may the state, whose power of regulation is plenary till Congress intervenes. Gilman v. Philadelphia, supra; International Bridge Co. v. New York, supra.

[16][17][18] The Lehigh Valley Railway Company, the owner of these bridges, is organized as a corporation under the laws of this state, and must look to those laws for the definition of its powers. The railroad corporation acts for the better part of a century have treated the right to span a stream as a privilege or franchise. We see this in the act of 1850 (L. 1850, c. 140, § 28, subd. 5). Provision is there made that a railroad corporation may construct its road across any stream of water or water course, provided the stream or water course be restored to substantially its...