People v. Delaware & Hudson Co.

• Decision Date: 08 December 1914
• Citation: 107 N.E. 506,213 N.Y. 194
• Parties: PEOPLE v. DELAWARE & HUDSON CO.
• Court: New York Court of Appeals Court of Appeals

213 N.Y. 194

107 N.E. 506

PEOPLE

v.DELAWARE & HUDSON CO.

Court of Appeals of New York.

Dec. 8, 1914.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by the People against the Delaware & Hudson Company. From so much and such part of a judgment of the Appellate Division (154 App. Div. 909, 139, N. Y. Supp. 392) as modifies a judgment of the Albany Trial Term in favor of plaintiff and against the Delaware & Hudson Company, plaintiff appeals. Modified and affirmed.

Thomas Carmody, Atty. Gen. (Wilber W. Chambers, of Albany, of counsel), for appellant.

Lewis E. Carr, of Albany, for respondent.

CHASE, J.

This action is brought to abate an alleged public nuisance and to have it adjudged that certain embankments, which it is alleged in the complaint the defendant erected in the waters of Island creek, and also a certain trestle bridge, which the defendant had erected across said stream, interfered with and obstructed navigation, and that they were purprestures and public unisances, and to restrain and enjoin the defendant from continuing to encroach upon the bed and waters of said stream, and also to compel it to remove forthwith at its own cost and expense the encroachments and obstructions which it had placed in said stream and restore it to its original condition.

Issues were joined, and, at the trial, judgment was obtained substantially as asked for in the complaint, except that it was therein provided ‘that the defendant, as a condition of being required to remove its said bridge and trestle and the piles supporting it, and of restoring Island creek to its former depth, and width, be permitted, when that is done, to build a draw, lift, or suspension bridge at the place of the present bridge which will not interfere with the navigation of such creek, and which will afford necessary railroad connection to Rensselaer island.’

The people did not appeal from said judgment, but the defendant appealed to the Appellate Division, where the judgment of the Trial Term was modified so as to limit its provisions relating to the removal of alleged encroachments and obstructions to such removal within the boundaries of the stream as defined by certain bulkhead lines established by chapter 689 of the Laws of 1906, and by further modifying its provisions so as to give the defendant at its election the right to ‘build a bridge supported upon piers at practically the place of the old bridge, which shall leave an open clearance over the thread of the stream of not less than fifty feet in width and at least two feet greater in height than the present bridge, and that in case the appellant shall elect to build a bridge other than a drawbridge, the respondent shall have the right at any time, should the reasonable use of the stream for navigation require, to apply to the court for a modification of the decree entered hereon, by requiring the defendant, its successors and assigns, to so change the bridge as the public interests may seem to demand.’ It is from the modifications of the judgment that the people appeal to this court.

Island creek is a navigable stream about three or four miles long, having its source at and its outlet into the Hudson river. It is in part the southerly boundary of the city of Albany, and in such part it is included within the territory of said city. It bounds Rensselaer island on the north, west, and south. There is an ordinary highway bridges crossing the creek from Green street in the city of Albany to said island. Although a navigable stream in which the tide ebbs and flows, which has been used as such from time immemorial, its use as such has been confined to pleasure boats and occasional boats with steam power drawing from four to five feet of water. Prior to 1870 the Albany & Susquehanna Railroad Company obtained the title to the lands on each side of said creek, from a point near said bridge, westerly and southerly to a point south of the trestle railroad bridge referred to in the judgment. The title thus obtained by said railroad company is in part a title in fee and in part the ordinary title of a railroad corporation for public use. About 1870 said railroad company leased its railroad property and rights to the defendant company. About 1871 or 1872 the defendant erected a trestle bridge to support a single railroad track diagonally across said creek, which trestle or bridge was supported by wooden piles driven into the bed of the stream. The bridge was erected to enable the defendant, by a spur track, to transport freight to and from certain industrial plants or factories that had been erected upon said island. About 1901 the old trestle bridge was taken down and a new one erected on which two railroad tracks were placed to be used in connection with two spur tracks running to said plaints or factories. Such spur tracks are the only connection by railroad with said island and said plants or factories.

It is found by the trial court, in substance, that the defendant filled in certain parts of the lands between low and high water mark adjoining its real properly on each side of said creek. It is also found by the trial court that the Legislature, by chapter 689 of the Laws of 1906, passed an act entitled ‘An act to provide for the improvement of the river front in the city of Albany,’ and in substance that by said act a bulkhead line was fixed and established on each side of said creek at a point outside of high-water mark.

[1] The title to the bed of navigable streams and the control of navigable waters are vested in the state, subject to the limitations found in the federal Constitution. Langdon v. Mayor, etc., of N. Y., 93 N. Y. 129. The state, except for such limitations, has power to grant the title to lands under water, unconditionally or conditionally, or it may grant special rights therein, or it may restrict the boundaries of navigable waters by defining the same.

[2][3] The bulkhead line along each side of said creek determines the point beyond which wharves, docks, and piers cannot be lawfully erected, and it fixes and defines the boundaries to be devoted to the navigable channel. An obstruction outside of the bulkhead line is an interference with the public highway and a nuisance per se. An encroachment or filling within the bulkhead line may or may not be a public nuisance. It would be a lawful act on the part of an absolute owner of the adjoining upland, if the filling was for the ultimate purpose of erecting a wharf or dock, and of securing access from such adjoininguplands to it. Langdon v. Mayor, etc., of N. Y., supra; Williams v. Mayor, etc.,...