30 N.Y.S. 92 | N.Y. Sup. Ct. | 1894
As the law is now settled in this state, an upland
The plaintiffs are the owners of a parcel of land in the town of Cornwall, on the westerly shore of the Hudson river, and they have also obtained, from the commissioners of the land office of this state, a grant of land under the waters of the Hudson river in front of their premises. Upon the upland premises, the plaintiffs have constructed a brickyard, and all the structures and appliances appropriate to the manufacture of brick, and they have conducted that business there for several years last past. The plaintiffs received their title to the upland in 1886, and their water grant in 1887. In 1882 the Hew York, West Shore & Buffalo Railway Company, the predecessor of the West Shore Railroad Company, constructed a railroad along the Hudson river in front of the lands of the plaintiffs, and between them and the navigable waters of the river. The road is so constructed as to obstruct the access to the river from the premises of the plaintiffs. The West Shore Railroad Company has succeeded to the rights of the corporation which constructed the railroad, and is subject to all the obligations and duties imposed upon railroad companies incorporated. The defendant the Hew York Central & Hudson River Railroad Company is the lessee of the road from the West Shore Company, and now operates the railroad. This action is brought for the purpose of restraining the operation of the railroad, and recovering the damages which have resulted therefrom. The cause has been tried before a judge without a jury, and a judgment rendered in favor of the plaintiffs for $1,750 damages in the use of the brickyard and $9,000 damages to the fee of the premises; that the plaintiffs are entitled to an injunction restraining the defendants from the further maintenance of the obstruction to the access to the Hudson river, but, in case the defendants pay or tender to the plaintiffs such sum, with interest, the injunction is not to issue, and then the plaintiffs must deliver to the defendants a release conveying to the defendants the right to use the waters, and the lands under water, within the boundaries of the lands granted by the people of the state to the defendants for the maintenance and operation of their railroad as the same is now constructed, or shall be hereafter changed, and a release of all future damages to be incurred by the plaintiffs from the maintenance and operation of said railroad as the same is now constructed, and as it shall be hereafter changed. The defendants have appealed from the entire judgment, and the plaintiffs have appealed from that portion of the judgment which di
In relation to the appeal of the defendants which involves the merits of the action, it is only necessary to say that the first principle laid down at the head of this opinion is sufficient for the maintenance of this action. The Hudson river is viewed as a great public thoroughfare, and the rights of riparian proprietors upon that river and the fights of abutting landowners upon public streets are regarded as similar, and the rights pertaining to each are considered the same. Commencing with the Story Case, 90 N. Y. 122, and continuing through the numerous cases against the elevated railroads, and the Rumsey Cases
114 N. Y. 423, 21 N. E. 1066; Id., 133 N. Y. 79, 30 N. E. 654; Id., 136 N. Y. 543, 32 N. E. 979.