In re the New York, West Shore & Buffalo Railroad

Barnard, P. J.: The lands proposed to be taken are situated under the waters of the Hudson river. The commissioners of the land office have granted the same to the predecessors in title of the appellants. The docks required by the terms of the grant have not been built within the time specified therein. The proposed road-bed of the railroad company is over one hundred feet in the river, leaving a strip of water inside of the track, but the proposed road-bed is all within the grant of the land commissioners to Walsh. Under this state of facts the appellants claim that the railroad company have no power to construct their road; that the'case is one which is covered by a portion of the eighteenth section, subdivision 5 of the general railroad act. These words are now as follows: “ 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.” These words ■ were designed without doubt to cover the case presented. There should be no obstruction placed in waters actually navigated at the proposed place of obstruction by steam or sail boats. The legislature in the same act provided, however, that the commissioners of the land office might convey to railroads lands under water required for the purpose of the road. (Sec. 25 of chap. 140 of the Laws, of 1850.) ( The lands granted to Walsh are still his, because no breach of a condition subsequent of itself divests the title. There must be a re-entry. The case is therefore one where the land taken is the private land of Walsh, granted for purposes of commerce. The State, through its authorized agents, have determined that the part granted under water is not needed for purposes of navigation. They have authorized and required it to be filled up and docked [60] out for the purposes of commerce. It does not, therefore, come under the section of the general railroad act which prohibits obstructions in navigable waters. The obstruction is legalized, and Walsh may sell the right to any one to destroy navigation within the limits of the grant. What Walsh can sell can be taken from him by condemnation upon payment of its value. This view of the case seems to be in harmony with the case, Matter of New York Central and Hudson River Railroad Company (77 N. Y., 248). In that case the railroad company took lands under water which had been granted to private individuals. The court held that the lands might be taken under the general railroad act, it being necessary to the purposes of its incorporation. . The taking in that case was under a section providing for the same after a railroad is built, but the prohibition which is cited as to obstructions in navigable waters is general and applies to all railroad companies which take land under it. If the-present appellants had their track upon the shore it could, under the authority of that case, take these lands under water and dock them out to the extent of the lands taken. There is no error in striking out of the petition the clause as to a drawbridge. It was no part of the petition. The company, if the lands are taken and the road built, must do whatever the law imposes upon it to do. If the case is one calling for restoration of the stream, that must be done. If the appellants tract of upland and land under water is such, that the ' company must pay for all damage to the entire piece, that must be done. The question is not before us, and the facts from which it could be determined are not presented. We think the land may be taken, and therefore the order should be affirmed, with costs and disbursements. Gilbert, J., concurred so far as petitioners’ right to acquire interests of appellants, and, as regards costs, is affirmed. Dykman, J., not sitting. Order affirmed, with costs and disbursements.