159 N.E. 703 | NY | 1928
The question in this case is the one left open and undecided inPeople ex rel. Western N.Y. Penn. Ry. Co. v. State TaxCommission (
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. Motor boats, 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.
We think the maintenance of a bridge by a public *12 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.
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 L.,H. P. Co. v. State,
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,
We have said that a bridge over a navigable stream is subject in its construction to the veto of the State since it 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 LewisCo.,
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 prohibit *14
or 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,
The Lehigh Valley Railway Company, the owner of these bridges, is organized as a corporation under the *15 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, ch. 140, § 28, subd. 5). Provision is there made that a railroad corporation may construct its road across any stream of water or watercourse, provided the stream or watercourse be restored to substantially its former state. "Nothing in this act contained," however, "shall be construed to authorize the erection of any bridge, or any other obstructions across, in or over any stream or lake navigated by steam or sail boats, at the place where any bridge or other obstructions may be proposed to be placed." We see the same thought in the later Railroad Act of 1890 (L. 1890, ch. 565, § 11) which in this respect continues the act of 1850 with changes merely verbal. We see the same thought, emphasized and developed, in the Railroad Act in force at the time of the assessment (L. 1910, ch. 481, as amended by L. 1913, ch. 743, and L. 1916, ch. 109; Consol. Laws, ch. 49). In that act there is a re-enactment of the provisions of the earlier statutes with the addition that the consent of the Public Service Commission shall be obtained whenever a bridge is built across a navigable creek. A railroad corporation submits in the acceptance of its charter to the restrictive reservations accompanying the grant.
The right to bridge a stream is not an inseparable incident to riparian ownership (Enfield Toll Bridge v. Hartford R.R. Co.,
Distinctions have at times been attempted between streams navigable for boats and those floatable for logs (Gould on Waters, § 110; 1 Farnham on Waters, § 29, p. 138; cf., however,Morgan v. King,
The order should be affirmed with costs.
POUND, CRANE, ANDREWS, LEHMAN, KELLOGG and O'BRIEN, JJ., concur.
Order affirmed, etc.