People v. Meach — 14 Abb. Pr. 429

Majority

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PEOPLE against MEACH.

Supreme Court, Third District;

Special Term, June, 1870.

Headnote

Injunction.—Supervisors.—Commissioners.— Navigable Waters.

The supervisors of a county, in executing the power conferred by the Laws of 1869 ( 2 L. 1869 , p. , ch. 855, § 2), to provide for the erection of bridges, &c.,—may appoint commissioners to carry out the work.

Their erection of a bridge is not rendered illegal by the fact that when determined on there was no highway leading to its site.

An injunction should not be granted to restrain them from erecting a bridge over a stream in which the tide ebbs and flows, if it be doubtful whether in any event the stream could ever be navigable.

This action was brought against Jacob H. Meach, Elijah P. Bhshnell, Samuel Dewey, commissioners to build a bridge in Greene county, and Frederick Hill, county treasurer of the county.

In the year 1869, application was made to the board of supervisors of Greene county, for authority to build a bridge over Catskill creek, in the village of Catskill, under the provisions of the Laws of 1869, chapter 855.

By section 3 of that act, boards of supervisors in each county of the State except New York and Kings, ‘ ‘ shall have power to provide for the use of abandoned turnpikes, plank or macadamized roads, within any town as public highways and for the improvement of any public highway laid out in pursance of law, and for the location, erection, repair and purchase of any bridge, except over navigable streams.” The board acted favorably on the application, and on November

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16, 1869, passed a series of resolutions providing for the erection of a free bridge over the creek at a point one-half mile north of the toll bridge belonging to the Catskill Bridge Co., authorizing the issue of bonds by the town, and appointing the defendants, Jacob H. Meach, Elijah P. Bushnell and Samuel Dewey, commissioners to carry out the work,' the county treasurer being designated as the person who was to negotiate and sell the bonds.

By the terms of the Catskill Bridge Company’s charter, no bridge could be erected within half a mile of the old structure. At the point indicated for the site of the new bridge therefore, it happened there were no roads. The creek, emptying into the Hudson river, one hundred and twenty miles from its mouth, is an arm of the sea, in which the tide ebbs and flows as far as Cook’s Dam, some' two miles from the river, and at the place selected for the new bridge, its rise and fall is from two to three feet. At low water, the bed of the creek was nearly bare ; while at high tide small boats and flats could be floated over the rocks and shoals. Above and below them are places in the stream of of sufficient depth for ordinary navigable purposes— but from' a dock halfway between the old and new bridge to Cook’s Dam, the creek has never been used as a means of commerce and navigation. The bridge was located within the corporate limits of the village of Catskill. The bridge commissioners obtained the consent of the village trustees to the erection of the bridge, and the latter at once caused surveys to be made and opened roads to the new structure.

Contracts for the iron superstructure and the abutments to the bridge were entered into, and the bonds of the town were issued and placed in the hands of the county treasurer to be sold. After all this, on April 28, 1870, this action was brought. On application of the attorney general, a temporary injunction was

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granted by Justice Hogeboom, to restrain the defendants from the prosecution of the work. The relief asked for in the complaint was: 1. That the defendants be perpetually enjoined. 2. That the commissioners be ousted from office. 8. That the resolutions of the board be declared mill and void. 4. That the bonds be declared illegal; and, 5. In case the bridge be built that it be torn down. On the grounds : 1. That the location of the bridge was within the limits of an incorporated village. The board of supervisors had therefore no power over it. 2. There being no roads to the site selected, the board • had, under the act of 1869, no authority to provide for the erection of the bridge at that point. 3. The defendants were created officers in defiance of article 10, section 2 of the constitution of the State of New York. 4. That the Catskill Creek is a navigable stream.

A motion was now made by the defendants to dissolve the injunction. The foregoing facts are substantially admitted in the affidavit submitted on the hearing.

Jas. B. Olney, A. M. Osborn and S. Hand, for motion:

I. The board had power to locate the bridge within the incorporate limits of the village (People v. Bennett, 54 Barb., 484 ; People v. Acton, 48 Id., 524 ; Laws of 1869, ch. 855, § 2).

II. The defendants were properly appointed commissioners (Greaten v. Griffin, 4 Abb. Pr. N. S., 310 ; 15 N. Y., 532 ; 32 Id., 306, 377 ; 52 Barb., 436 ; 42 Id., 627 ; 36 N. Y., 285 ).

III. The term ‘ ‘ navigable streams ” in the statute means those streams that are actually used for commercial purposes (Morgan v. King, 18 Barb., 283 ; 30 Id., 15 ; 8 Id., 243 ; 20 Johns., 94 , 95 ; 10 Id., 236 ; 5 Wend., 494 ; 13 How. Pr., 454 ; 48 Barb., 656 ; 6 Cow., 539 ; 3 Kent Com., 7 ed., 503 ; 9 Paige, 547 ; 20 Wend., 149 ; 6 Barb., 265 ; 17 Johns., 195 ; 17 Wend.,

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571 ; 33 N. Y., 461 ; 24 Barb., 215 ; Clark Ch., 344 ; Binney [Pa.], 475 ; 2 Dess. [N. C.] 30 ; 3 Id., 59). The mere ebb and flow of the tide does not change the principle (Massachusetts: 21 Pick., 344 ; New Jersey : 2 Stockt., 211 ; California : 6 Cal., 443 ; Tennessee : 2 Swanst., 9 ; South Carolina : 1 McCord, 580 ; 2 McLean, 376 ).

IV. Defendants are not officers; they are agents (2 Keyes, 192 ; 4 Abb. Pr. N. S., 314 ; 42 Barb., 627 ; 1 Lans., 205 ; 20 Wend., 595 ; 20 Johns., 490 ; 37 N. Y., 520 ).

V. Unless the public are aggrieved, an injunction ought not to be granted ( 9 Ohio, 52 ; 27 Barb., 210 , 211 ; 30 N. Y., 58 ; Ired. Eq., 199 ; 7 Barb., 508 ; 2 Abb. Pr. N. S., 415 ; 2 Duer, 621 ; 4 Id., 192 ; 28 Barb., 233 ; Eden on Inj., 160 ; 17 Wend., 606 ).

M. B. Champlain, attorney general.

D. K. Olney and R. H. King, opposed.

[Dissolved the injunction, assigning the following reasons for so doing:]

I. The objection that the commissioners are not the proper agents of the board of supervisors to execute the power of building the bridge, and that this should be executed by town or village- authorities, I regard as unfounded.

1. The supervisors have the power, and may execute it in any way that satisfies their sound discretion.

2. No particular set of agents is required by the statute or by the general law.

3. The practice of doing it by commissioners is a very general one, and approved by usage of long standing.

4. I do not regard it as the usurpation of an office, but the execution of an agency.

II

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The objection that no road or highway was connected with the bridge at the time of its location, I regard as insufficient to retain the injunction.

1. The power is general, to locate and erect a bridge.

2. If invalid in its exercise unless connected with a road or highway, such road or highway is now laid out and being worked. This I think removes the objection, or at least makes the location of the bridge proper from that time, so that an injunction ought not to lie against it at present, or, if granted, ought to be removed when the defect is supplied.

III. The principal objection that the Catskill creek is navigable, ought not, I think, to operate to retain the injunction.

1. As a question of fact, I am inclined to think the Catskill creek not navigable at the locality of the new bridge, within the meaning of the statute.

2. It has never been put to use for purposes of navigation at that point, at least to any such extent as would be interfered with by this bridge.

3. The ebb and flow of the tide is not the only test of navigability. By “ navigable streams” the statute intends, I think, streams capable of use for navigation in some useful, substantial and practical way. I doubt whether this could ever be done here, on account of the shoals, rocks and rift’s in the stream.

4. The great improbability if not the absolute im possibility of ever devoting the stream at this point to purposes of practical navigation, seejns to me a reason for not interfering by injunction to prevent the construction of a bridge which the public authorities have, in the supposed exercise of a sound discretion, deemed it appropriate to undertake. If it turns out to be in fact a nuisance, the people may hereafter assert their right to abate it.

IY. With the question of wisdom or prudence in the selection of the site, or the best mode of obtaining a

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free bridge, I have nothing to do. It is simply a question of power; and if .the commissioners have kept themselves within the terms of the law, I cannot control their action, even if I thought it injudicious. There is no charge of fraud.