Trs. of Freeholders & Commonalty of Town of Southampton v. Jessup

• Decision Date: 27 February 1900
• Court: New York Court of Appeals Court of Appeals
• Parties: TRUSTEES OF FREEHOLDERS & COMMONALTY OF TOWN OF SOUTHAMPTON v. JESSUP.

162 N.Y. 122

56 N.E. 538

TRUSTEES OF FREEHOLDERS & COMMONALTY OF TOWN OF SOUTHAMPTON

v.JESSUP.

Court of Appeals of New York.

Feb. 27, 1900.

Appeal from supreme court, appellate division, Second department.

Action by the trustees of the freeholders and commonalty of the town of Southampton against Nathan C. Jessup. From a judgment of the appellate division affirming a judgment for plaintiffs (42 N. Y. Supp. 4), defendant appeals. Reversed.

This action was brought to enjoin the defendant from excavating, embanking, or otherwise interfering with lands under the waters of Great South Bay, at Potunk Point, in the town of Southampton, county of Suffolk, and to recover damages for alleged trespasses of like character already committed. The answer justified the acts of the defendant under authority from the secretary of war, and under a resolution duly adopted by the plaintiffs on the 2d of June, 1888, of which the following is a copy: ‘Resolved, that Nathan C. Jessup be, and is hereby, given liberty to make a roadway and to erect a bridge across the Great South Bay, commencing at the south point of Potunk Neck; thence running southerly to the beach; the said bridge to be a drawbridge, of a width of not less than twenty feet, the height above the meadow three feet, and the draw to be twenty feet wide; and the said Nathan C. Jessup shall not cause any unnecessary delay to those navigating the waters of said bay.’ The defendant further alleged that he had erected the bridge authorized by said resolution; had permanently built a portion of the roadway, at great expense, and for the rest of the distance had erected a temporary structure on piles, intending to replace it by a permanent and substantial roadway, and that he had been delayed in completing it by an injunction but recently vacated. Upon the trial it appeared that the width of the bay at the locality in question is about 350 feet, and that when this action was commenced the defendant, for a distance of more than 200 feet from the south shore nearly to the bridge, had constructed a solid roadway 30 feet wide and 3 feet high, by excavating the earth from the bottom on either side and throwing it into the middle. There is no tide at this point, and the water is very shoal, varying in depth from six inches to a foot and one-half. When the wind blows from the west the water is forced eastward, where the bay is half a mile wide, and sometimes floods the highways and the cellars of the houses on the uplands. It was claimed by the plaintiff that a solid roadway would obstruct the reflow of the water to its accustomed level, but that the wooden structure on piles would have no such effect. It was claimed by the defendant that a solid roadway would necessarily obstruct the flow of water one way as much as the other, and hence would prevent the water from flowing eastward to a great extent, and thus save the uplands from inundation. The trial judge, by a decision which did not separately state the facts found, directed judgment for an injunction, and for the sum of $450 damages, stating as the grounds that ‘the resolution of the board of trustees of the town of Southampton, set forth in the answer and proven upon the trial, did not authorize or permit the defendant to construct a solid embankment or roadway across said lands; that it was the intention of the said trustees and of the defendant that there should be constructed a roadway built of timber, upon piles driven into the mud and water; that such resolution was so construed and acted upon by the parties, and the acts of the defendant complained of were without authority, and consequently constituted a trespass.’ Judgment was entered accordingly, and after affirmance by the appellate division the defendant appealed to this court.

David B. Hill and Charles M. Stafford, for appellant.

Thomas Young, for respondents.

VANN, J. (after stating the facts).

The roadway in question is one of the approaches to the same bridge that was recently the subject of controversy in this court, and was built under the authority of the resolution then under consideration. People v. Jessup, 160 N. Y. 249, 54 N. E. 682. We held in that case that the plaintiffs in this action, through the Andros and Dongan charters, became vested with ‘a title and sovereignty over the waters, and the lands thereunder, at and opposite Potunk Point, that enabled them to permit the doing of all things that a government may do for the benefit of its people,’ and that they had power to adopt said resolution. Neither party challenges that decision, but both recognize it as sound law, so that no question now arises as to the power of the plaintiffs in the premises. They differ, however, as to the meaning and effect of the resolution; the plaintiffs claiming that it is a mere license, revocable at will, while the defendant insists that it is a franchise or easement, or, if a license, irrevocable after he had acted upon it at a large expense. A license is a personal, revocable, and nonassignable privilege, given by writing or parol to one, without interest in the lands of another, to do one or more acts of a temporary nature upon such lands. Greenwood L. & P. J. R. Co. v. New York & G. L. R. Co., 134 N. Y. 435, 440,31 N. E. 874, and cases cited. ‘Although originally revocable at the will of the licensor, it may become irrevocable through the expenditure of money by the licensee.’ Id. An easement is a permanent right conferred by grant or prescription, authorizing one landowner to do or maintain something on the adjoining land of another, which, although a benefit to the land of the former, and a burden upon the land of the latter, is not inconsistent with general ownership. Railroad Co. v. Garvey, 159 N. Y. 334, 338,54 N. E. 60, and cases cited. A franchise is a grant by or under the authority of government, conferring a special and usually a permanent right to do an act or a series of acts of public concern; and, when accepted, it becomes a contract, and is irrevocable, unless the right to revoke is expressly reserved. People v. Utica Ins. Co., 15 Johns. 358, 387;Bank v. Earle, 13 Pet. 519, 595, 10 L. Ed. 274;California v. California Pac. R. Co., 127 U. S. 1, 40, 8 Sup. Ct. 1073, 32 L. Ed. 150. These definitions, while not comprehensive enough to cover all cases, are sufficient for the case in...