Veeder v. . Village of Little Falls

*348 Andrews, J. It must be assumed in determining this appeal, that the blue line, which indicates the boundary of the State land on the «northerly side of the Erie canal at Little Falls, west of German street bridge, was located on a line parallel with the wing or retaining wall of the bridge, and about twenty-one inches northerly therefrom. The land north of the wall, within the blue line, being a strip about ninety feet in length, and of the width stated, was used as a part of Mohawk street. The principal negligence charged, is the omission of the village to erect a barrier upon or along the retaining wall to prevent persons traveling in Mohawk street from driving upon or falling over the wall. The retaining wall was constructed by the State as early as 1840, and was a State structure. It served the purpose of protecting the embankment on Mohawk street, made necessary to reach the elevation of the bridge, and it also protected the towing-path from the sliding of the embankment. Mohawk street was laid out in 1832. There was then a bridge at German street. The ordinance of the village laying out Mohawk street described it as running from Bellinger street on the west (along the canal) to the north abutment of the bridge, and as being at that point thirty feet in width, and it designated the center line as terminating on the east at the edge of the bridge abutment sixteen and one-half feet south of the north line of the street. In 1878 the village authorities re-described the streets in the village, and Mohawk street was described as being thirty feet wide at its easterly end. The action of the village authorities in 1832 is inexplicable. The street as described appears to have included not only the whole towing-path of the canal as it was then located, but a part of the water-way. It appears that at the time of the enlargement of the canal but little change was made on the north side of the canal at this point. The description made in 1878 makes the street thirty feet wide at its junction with German street, but it is undisputed that there was only a space of twenty feet, or thereabouts, between the north line of the street and the retaining wall. The retaining wall and the twenty-one inches north of it, in both records, *349 was included in the boundaries of Mohawk street, but the wall and the strip north of it, within the blue line, was the property of the State, which the village could not appropriate for a street, and its attempt to do so was a nullity. The village, however, by the sufferance of the State, and not as far as appears by any express permission or agreement, used this strip of land along the retaining wall as a part of Mohawk street. It may be said, perhaps, that the State adapted it to such use. The State, when it built the retaining wall, filled in the landing, or space between the retaining wall and the north side of Mohawk street from the foot of the slope at the west end of the wall to the bridge, a distance of about ninety feet, and the State has from time to time graveled the street at this point. The village authorities have also exercised jurisdiction over the street north of the retaining wall. It has repaired the way, directed the removal of obstructions, and in 1836 it attempted to widen .the street at the easterly end, but the project seems to have been abandoned. What has been done by the State and by the village has, so far as appears, been done by each jurisdiction independently, without consultation or mutual agreement. The evidence tends to establish that the intestate on a dark night was driving ‘ ‘ pretty fast ” along Mohawk street toward the bridge, and when he approached the west end of the retaining wall, drove too far to the south, so that the right wheels of the wagon were on the towing-path, and the left wheels on the road-bed. When he had proceeded so far that the wall was higher above the towing-path than the axle-trees of the wagon, they caught on the wall, and the intestate with his team and wagon were thrown over into the canal and he was drowned. A railing on the wall would have prevented the accident. But the wall was on the State land. The village had no legal right to put a railing on it, and consequently there was no legal duty on the village to, erect one thereon. Legal negligence on the part of the village cannot be predicated of an omission to do what there was no legal right to do. (Carpenter v. City of Cohoes, 81 N. Y. 21.) Nor can it be *350 predicated, we think, of a failure of the village authorities to obtain permission from the State to erect a barrier on the State land, although such permission, if applied for, might have been granted. The danger was not very obvious, as is shown by the fact that the street had been used in substantially the same condition as it was at the time of the occurrence in question for forty years, without the happening of any accident from the location of the wall. The policy of the State in respect to encroachments on the property of the State devoted to canal purposes is shown by chapter 657 of the Laws of 1866, which makes it the duty of the canal commissioners to cause to be removed from lands taken from the State for the purposes of the canal, except in the thickly built part of cities, all encroachments thereon by buildings, fences or other structures. The trial judge expressly charged that the village had no right or authority to build a guard or barrier upon the wall, unless permitted by the State, and this is not only the law of the case on this appeal, but the proposition is correct in principle. But we think the court erred in refusing to charge as requested by the counsel in behalf of the defendant, that if the jury should find that a railing or guard north of the wall, outside of the State property, would be dangerous to the traveling public, the village authorities were not negligent in failing to build a guard there. The trial judge in denying the motion for a nonsuit, and at the close of the evidence, held that the complaint was broad enough to authorize the jury to determine whether a barrier should have been placed outside of the blue line. It appears that at the west end of the wall there was a space of only about eight and one-half feet between the north face of the wall and the sidewalk on the north side of Mohawk street. The State land extended, as has been said, twenty-one inches north of the wall. If a barrier had been placed on the boundary of the State land, the traveled way, at the west end of the wall, would have been contracted from eight and one-half feet to a little more than six and one half feet. The jury might very well have found that such an obstruc *351 tian would have constituted a greater danger than the one sought to be avoided, and it could not be negligence in the village to omit to erect a barrier on the boundary line, if such barrier would have rendered the street more unsafe than it was in its existing condition. It is unnecessary to determine whether a verdict could be sustained by reason of any other omission than a failure to erect a barrier along the wall. This was the principal negligence charged, and the defendant was entitled to a proper charge upon the point suggested. The case of Sewell v. City of Cohoes (75 N. Y. 45) 'does not control this case. In that case the city permitted a structure erected by a third person, to overhang the traveled path, rendering its use dangerous, and it was held that the fact that the city had not acquired title to the land which it had assumed to appropriate for a public street, was not a defense to the action. In this case there was no defect in the roadway. The danger, if any, was extrinsic, and arose from a structure made by the State on its own land, over which the village had no control, and with which it had no right to interfere. For the error in the refusal to charge, as requested, the judgment should be reversed and a new trial granted. All concur, except Earl, J., taking no part. Judgment reversed.