Opinion
Argued January 24, 1927
Decided March 1, 1927
Appeal from the Supreme Court, Appellate Division, Third Department.
Albert Ottinger, Attorney-General ( Frederick J. Merriman of counsel), for appellant.
Frank Rumsey for respondent.
The evidence sustains the findings that the Genesee river is not and, in its natural state, never has been navigable for any purpose at the places where the bridges have been erected and in the stretch of twenty-two miles between such bridges. The statutes declaring the Genesee river navigable were enacted after the State had parted by grant with title to the shores and bed of the river. ( Commissioners of the Canal Fund v. Kempshall, 26 Wend. 404.) The State could not by means of such statutes diminish or destroy without compensation rights of property of the riparian owners derived from such grant. ( Morgan v. King, 35 N.Y. 454; United States v. Cress, 243 U.S. 316.) The rights of riparian owners were not affected by the statute. The fact that the State thereafter became the proprietor of narrow strips of shore where the canal prism crossed the river could not result in making the river a public navigable stream in front of such strips when it was in fact not navigable there for any purpose and at all other points was in private ownership. For these reasons we agree with the courts below that the right of the relator to erect its bridges across the Genesee river upon the right of way owned by it does not constitute a special franchise.
No question has been raised as to whether the right to erect a railroad bridge resting on abutments on private property across a stream, the bed of which is in private ownership, even though to some extent the river can be used for navigation, constitutes a special franchise unless the bridge so erected does actually interfere and obstruct the use to which the public could subject the stream. We, therefore, do not pass upon it.
The order should be affirmed, with costs.
CARDOZO, Ch. J., POUND, CRANE, ANDREWS and LEHMAN, JJ., concur; KELLOGG, J., not sitting.
Order affirmed.