117 N.Y.S. 1048 | N.Y. App. Div. | 1909
The action was brought to recover $118,161.66 paid the defendant by virtue of an adjustment made by the special examiners and appraisers under section 1 of chapter 335 of the Laws of 1904, in full compensation for the rights and property of the defendant taken for the barge canal under section 4 of chapter 147 of the Laws of 1903,
The trial court found, and the finding is amply sustained by evidence, that' the lands sought to be appropriated by the State upon either side of Fish creek, immediately after the waters of Wood creek join it, and for which the said adjustment and settlement was made, was the property of the defendant at the time the State appropriated the same for barge canal purposes. ", .Fish creek, at the place in question, had been previously used for canal purposes, and the title to the bed of the stream was evidently in' the State and not in the defendant, but defendant owned upon both sides of the creek. By erosions and accretions, during many years, the banks of the stream had changed somewhat, and- it is almost impossible to tell where the.exact property line of the defendant is on each side of the stream. The State officers, therefore, had ample power to make, a proper settlement and adjustment with the defendant for its lands taken. The parties upon both sides making the settlement had full-knowledge of all the facts, and there was no mistake or fraud in the transaction. The defendant, therefore, recéived the money under a settlement made by proper State officials who had knowledge of all the facts, and who acted honestly and in good faith, as they believed, for the best interest of the State. There is an entire failure to prove the causé of action alleged. The law favors settle
It is, however, urged that in a way this settlement and adjustment is UzT'cxception to this rule, for the reason that the State officers adopted a wrong measure of damages and that thereby the defendant was allowed a larger sum than it otherwise would have received. The property taken from the defendant was situated upon each side of the creek, across which it maintained and operated its railroad bridge, standing about nine feet above the water upon abutments resting upon its land. The figures accompanying the agreement of settlement seem to indicate that the settlement was based, in part at least, upon ithe amount which the State Engineer and other State officers ascertained would be the cost of reconstructing -the bridge after the creek was canalized. It is claimed that the defendant had no right to maintain this bridge there, and, therefore, that the plaintiff was under no obligations to rebuild or pay damages for the removal of the old one, and that in any event the allowance for the construction of a new bridge was outside of the jurisdiction of the State officers. We need not pass definitely upon these questions,, but it is, perhaps, best to examine them somewhat so that we may see whether the State’s interests were fairly protected in the settlement.
Subdivision 5 of section 28 of chapter 140 of the Laws of 1850 authorizes railroads to cross the streams and canals of the State, but in a manner not to impair their usefulness, provided “Nothing in this act contained 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.” This stream was not navigated by steam or sail boats at the place where this bridge was constructed. The use of a stream a very few times in many years by a boat for a picnic or excursion cannot be deemed a navigation thereof within the meaning of this statute. (Kerr v. W. S.
Chapter 84 of the La.ws of 1869 gave to the predecessor in title to the defendant certain)rights of municipal aid and contained other provisions for its benefit.! By section 3 it was “ authorized to con-' struct a bridge over Bisli creek, in Oneida county, uppjnffhe plan of the enginéer of said company, the said creek having been abandoned by the State as a part of the Oneida Lake canal, subject however to the right of the State to resume the use of the said creek at any time without making compensation.” It is not apparent that this section conferred any benefit upon the company, as it had the. right to build the bridge, and the Oneida Lake canal at this place had in fact been abandoned for practical purposes some years before. I do not consider, therefore, that the words, “ subject however to the1 right of the State to resume the use of the said creek at any time without making compensation,” refer particularly to the building of the: bridge mentioned in that statute, for, as stated, no authority to build the bridge was needed. The statute merely recites the fact that the canal has been abandoned .but that the State may, nevertheless, resume the use of the creek. But if we read the statute otherwise and treat the consent to construct the bridge as a conditional one, the construction through the creek of the barge canal of a much greater width than the former canal, requiring fifteen and one-half feet in the clear between high water and the bridge, is not a resumption, of the use of the creek within-the meaning of the statute. It is practically an appropriation of the creek for a different use. It could not have been contemplated by the State or the company at the time the statute was passed that not only the defendant’s bridge but the approaches to it for a considerable distance upon either side of the creek were to be rendered valueless by so unusual a public improvement in the future. The Canal Improvement Act (Laws of 1903, chap. 147) contemplated full compensation to all parties whose property rights were injured by the canal to be built thereunder, and in section 3 we find the
The provisions of the statute referring to the construction of defendant’s bridge in' no way deprive it of any benefits to which it might otherwise be entitled under the above provision. The evidence of the Attorney-General, who was one of the Canal Board approving of the settlement made, shows that it was not considered certain that the State Was required to build a new bridge for. the defendant, or that the act authorizing the construction of the defendant’s bridge entitled it to the benefit of this provision with reference to the construction of new bridges. It cannot be said with certainty that the State was not obliged to replace the bridge in question. The whole facts were up for consideration; the agreement' for such compensation was made understandingly and in good faith; the defendant has acted upon it ;• the money has been paid and the bridge and its approaches rebuilt, and the State cannot now' be heard to question the validity of such adjustment. It does not appear that the interests of the State were not fully -protected in the adjustment. The judgment should, therefore, be affirmed, with costs.
Judgment unanimously affirmed, with costs.