116 Misc. 774 | N.Y. Sup. Ct. | 1921
In the year 1919 the state tax commission assessed for special franchise the
By section 34 of chapter 186 of the Laws of 1801, the legislature of the state declared the outlet of Otsego lake, and all such parts of the Susquehanna river as are contained within this state, to be public highways, except so much of the waters as might be necessary for the owners of the adjoining land to build storehouses and docks for the accommodation of boats, provided the same should not obstruct the navigation of said stream.
The test of navigability in law, is navigability in fact. Rivers are navigable in fact when they are used or are susceptible of being used in their ordinary condition by the public as highways of commerce. The servitude of privately owned lands forming the banks and bed of a stream to the interest of navigation is a natural servitude confined to such streams as in their ordinary and natural condition are navigable in fact. United States v. Crest, 243 U. S. 316, 323. The public right on a stream is the right of travel as on a public highway. The easement pertains to the sovereignty of the state; is inalienable, and gives to the public the right to use the stream for the purposes of navigation only.
The Chenango river is a fresh water stream. It is therefore a private river. As early as 1798 it was declared a public highway, but subject to the public easement for the purpose of navigation. The riparian owners might make such use of the river as they pleased, might bridge it and dam it except as prohibited by the legislature, and might cross it with
It is not necessary that in order to be navigable the river should be deep enough to admit the passage of boats at all portions of the stream. Danes v. State of New York, 219 N. Y. 67, 71; St. Anthony Falls Water Power Co. v. St. Paul Water Commissioners, 168 U. S. 349. A river is in fact navigable on which boats, lighters or rafts may be floated to market. Matter of Deposit Fishway, 131 App. Div. 403, 412. The capacity to float logs, singly or together, to run rafts however small, gives to all the public this easement, the right to use and navigate. Buffalo Pipe Line Co. v. New York, Lake Erie & Western R. R. (Barker, J.), 10 Abb. N. C. 107, 111. The legislature has the right to declare as a public highway a navigable river. Smith v. City of Rochester, 92 N. Y. 463, 485. The Otselic river was declared to be a public highway April 12, 1813, 2 R. L. 286. No individual, therefore, had a right to obstruct it by dams or other erections without a grant from the legislature. The right of the legislature to make such a grant is too clear to be disputed. Crittenden v. Wilson, 5 Cow. 165.
Every presumption is in favor of the constitutionality of a statute. Sweet v. City of Syracuse, 129 N. Y. 316; Dartmouth College v. Woodward, 4 Wheat.
The record is silent as to the natural condition of the river at the time of the passage of the act of 1801. In the year 1779, General Clinton confined the waters of Otsego lake, and breaking away the dam floated1 his transports down the rfver. The record discloses that even after the railroad was built alongside the river and before the advent of the automobile, houseboats would frequently come down the river in an ordinary condition of the water. One witness states the number at possibly fifty in one year. The witness describes two of the boats as built “ on the scow pattern, and a big top on them.” Fleets of boats and canoes came down from Avhich the occupants would camp out overnight, or become guests of hotels along the river. Cooperstown AA7as settled very early. The cutting down of the forests and clearing of the land has done away with the floating of rafts. In 1811 the legislature authorized the construction of the Phoenix Cotton Mill dam about three miles from the outlet of Otsego lake, making proArision for the construction of locks for passage of boats up and doAvn the river. Since then many other acts have been passed authorizing the construction of dams in the Susquehanna river. The large dams at Colliers, Oneonta, and between Unadilla and Otsego, for the generation of electric light and poAver, are among the more modern constructions.
The conclusion is, that in 1801 the Susquehanna river was navigable from the outlet of Otsego lake throughout its whole course. It was, therefore, a public highway and the legislature had the right to declare it such without maldng compensation to the owners of property along its banks.
However, another question arises in the case. Subdivision 7, section 2 of the Tax Law provides: “ The term * special franchise ’ shall not be deemed to include the crossing of a street, highway or public place outside the limits of a city or incorporated village where such crossing is less than 250 feet in length, unless such crossing be the continuation of an occupancy of another.street, highway or public place. This subdivision shall not apply to any elevated railroad.”
Concededly, such crossing is not the continuation of an occupancy of another street, highway or public place. The distance between the abutments of the bridge is 302 feet. The space under the bridge between the vegetation line on the south side of the river and the marks made'upon the stone riprap' by the current on the north side, measured along the center line of the bridge as indicating the normal high water mark, is 242 feet. Measurements of the width of the river were made every two weeks between July 30, 1919, and May 3, 1920, excepting from December 15, 1919, to April 1, 1920, Avhile ice was on the river.
One other fact should be noted, that the assessments of the bridge are divided between the tax districts of the town of Unadilla, Otsego county, and the town of Sidney, Delaware county. The instructions issued by the bureau of special franchises state that the assessment need not be reported unless the length of such bridges measured at normal high water mark is 250 feet, or more, in a single tax district.
The determination of the state tax commission should be annulled, and the amount of the tax paid refunded with interest, with costs to relator.
Ordered accordingly.