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APPEAL by the defendants, the Canal Board and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cayuga on the 8th day of December, 1910, upon the decision of the court rendered after a trial before the court without a jury at the Monroe Trial Term.
The judgment enjoined the defendants, their employees, agents and servants from in anywise interfering with a bridge constructed by the plaintiff or its predecessor in interest across the Seneca river near the village of Weedsport, N.Y. , without making compensation for all damages and expenses which might be suffered or incurred by plaintiff in the raising of said bridge and approaches thereto to conform to the requirements of the Barge Canal Act, so called. The judgment also awarded costs to the plaintiff and against the defendants in the sum of $1,106.82. The judgment ran against all of the defendants but only the State officials are appealing.
The action was commenced on the 25th day of March, 1910, practically to obtain the relief awarded by the judgment.
Edward J. Mone, Deputy Attorney-General, and Thomas Carmody, Attorney-General, for the appellants.
Frank H. Platt, for the respondent.
MCLENNAN, P. J.:
The Southern Central Railroad Company was incorporated in the year 1865 under and pursuant to the provisions of the General Railroad Law, being chapter 140 of the Laws of 1850, for the purpose of constructing and operating a railroad from Sayre, in the State of Pennsylvania, to North Fair Haven, in the State of New York. As required by section 22 of the Railroad Law said company filed in the Cayuga county clerk's office the profile and maps of its proposed railroad, showing
its location in said county, which included crossing the Seneca river at a point in said county about seven miles west of Jack's reef and fifteen miles east of the mouth of the Clyde river. Thereafter in the year 1871 said company, claiming to act under the authority conferred by the Railroad Law and with the consent or acquiescence of the State authorities, constructed a wooden fixed bridge across said river at the point in question and as shown upon the maps and profile filed by it as aforesaid. When completed said bridge was used as a part of said company's railroad and it continued to use the same and to maintain its tracks thereon until the year 1888, when it was replaced by an iron truss bridge, which is the subject of this litigation. Such new bridge, which is commonly known as the Weedsport bridge, is a three-span iron structure, about 342 feet in length, resting upon two stone abutments, one upon each bank of the river, upon land which said company had acquired and owned in fee simple; also upon two piers placed in the bed of the river at a distance from each other the length of the middle span of the bridge. Such bridge has a clearance above the ordinary height of the water in the river of seven and seven-tenths feet. Approaches to said bridge upon either side of the river were constructed by the company upon lands acquired and owned by it. Thereafter such bridge and approaches constituted part of said company's line of railroad and ever since its construction has been maintained and operated by it or its successors in interest, all with the acquiescence of or without objection by the State officials. In 1895, by foreclosure and reorganization proceedings, duly had, all of the railroad property, rights, privileges and franchises of the Southern Central Railroad Company were conveyed to the Lehigh and New York Railroad Company, which has since been the owner thereof. In the year 1895 all of said railroad property, rights, privileges and franchises were duly leased by said Lehigh and New York Railroad Company for a term of 999 years to the plaintiff, the Lehigh Valley Railroad Company, a foreign corporation, duly created under the laws of the State of Pennsylvania, and which company prior to the commencement of this action filed the certificate required by law to enable it to carry on its business in this State.
Prior to the passage of the Barge Canal Act, so called, being chapter 147 of the Laws of 1903, which authorizes the construction by the State of the barge canal, no question was raised as to the right of plaintiff's predecessors in interest to construct the bridges in question in the manner in which they were constructed or as to the maintenance and operation of the railroad in question over and across the same.
Said Barge Canal Act provides, among other things, in substance, that the Seneca river at the point in question shall become and form a part of such barge canal. Section 3 of the act provides: 'New bridges shall be built over the canals to take the place of existing bridges wherever required or rendered necessary by the new location of the canals. All fixed bridges and lift bridges when raised shall give a clear passageway of not less than fifteen and one-half feet between the bridge and the water at its highest ordinary navigable stage.' (See Laws of 1910, chap. 83, for last amendment to said § 3.)
In order to construct the barge canal as contemplated by the act not only must the bridge across the river have 'a clear passageway of not less than fifteen and one-half feet between the bridge and the water at its highest ordinary navigable stage,' being eight feet higher than the present structure, but the piers in the bed of the river which support the existing bridge must be removed. Indeed, it is practically conceded that in order to accommodate the construction of the barge canal as contemplated a new bridge will be required, involving a cost or expenditure of at least $100,000.
The learned Deputy Attorney-General contends that the cost of removing the present structure or of reconstructing it in such manner as to comply with the requirements of the Barge Canal Act must be borne entirely by the plaintiff if it is to continue to maintain its railroad across the Seneca river. Such contention was adopted by the defendants, the State officials, and before the commencement of this action, without making or offering to make any compensation to the plaintiff for the interference with or destruction of its bridge, made necessary by the improvement of the Erie canal, they requested and directed the plaintiff to raise said bridge and said approaches thereto, and plaintiff having refused to comply
with said request and direction the defendants threatened to enter upon said bridge and to alter, change and raise the same. Thereupon this action was commenced to restrain the defendants from carrying out such threat or intention.
Defendants' contention in the premises is sought to be sustained, first, upon the ground that by the incorporation of the Southern Central Railroad Company under chapter 140 of the Laws of 1850, or because of any acts done in compliance with the provisions of the said act, it did not acquire any right or license to construct the bridge in question. In effect, that the Seneca river being a navigable stream, the act of 1850 did not authorize said company to in any manner obstruct the same, and that it in erecting said bridge and the plaintiff in operating its railroad thereon were trespassers upon the property and rights of the State, and that, therefore, it was within the power of the State to at any time cause the removal of such obstruction and to compel the discontinuance of such trespass.
It is not claimed by the respondent that any statute existed authorizing the construction of the bridge in question and its use by the plaintiff other than is found in section 28 of the Railroad Law of 1850. That act provides as follows:
'Every corporation formed under this act shall, * * *, have power, * * *
'5. To construct their road across, along, or upon any stream of water, water-course, street, highway, plank road, turnpike or canal, which the route of its road shall intersect or touch; but the company shall restore the stream or water-course, street, highway, plank road and turnpike thus intersected or touched to its former state, or to such state as not unnecessarily to have impaired its usefulness. Every company formed under this act shall be subject to the power vested in the Canal Commissioners by the seventeenth section of chapter two hundred and seventy-six of the Session Laws of eighteen hundred and thirty-four. Nothing in this act contained shall be construed to authorize the erection of any bridge or ...