In re City of Buffalo

The exceedingly able and comprehensive report of the commissioners in this proceeding has served very materially to simplify the complicated questions which have been presented to the courts for decision. This fact was emphasized in the opinion of Mr. Justice Spring who wrote for the Appellate Division upon the appeal to that court, and we concur in that opinion so far as it goes, but deem it necessary to discuss two additional questions which affect, respectively, the appellants New York Central and Hudson River Railroad Company and Bowen et al.

The proceeding was instituted by the city of Buffalo, under chapter 142 of the Laws of 1909, for the purpose of acquiring, for park purposes, certain lands in that city embraced in the territory bounded on the west by Lake Erie; on the north by Jersey street; on the east by the Erie canal, and on the south by Georgia street. All of this tract was originally upland, as is shown by a map made in 1816. Since that time there has been a gradual and constant encroachment of Lake Erie until the greater portion of the land is now under water. The right of way of the appellant, the New York Central and Hudson River Railroad Company, acquired from its predecessor, the Buffalo and Lockport Railroad Company, runs through

From the lands embraced within the general boundaries above referred to there are excepted three classes of lands which are not sought to be acquired by the city in this proceeding: 1st. All lands belonging to the state. 2nd. The lands comprising the railroad right of way. 3rd. The lands owned by the railroad company lying outside of its right of way, just north of Georgia street and between the right of way on the west and the Erie canal on the east, where the railroad company is the only upland owner.

The appellants Bowen and others, who have the record title to parcels 64 and 65 (as marked on the commissioners’ map), which are to the west of the railroad company’s right of way and its adjacent uplands, claim to be the present owners of said parcels and insist that they are entitled to compensation therefor. These two parcels were formerly upland. When this proceeding was commenced they were entirely submerged and surrounded by water, as they had been for many years. The commissioners decided that this flooding of the land was the result of erosion. Th&t is a finding of fact which cannot be reviewed upon this appeal. Counsel for the appellants Bowen et al. concedes that if the submergence of these two parcels was caused by erosion, which means the gradual and imperceptible wearing away of the land by the natural action of the elements, the ownership is now in the state

The land of the appellants Bowen et al. has been lost by erosion. For many years it has been completely submerged. Under the rule applicable to loss of land by erosion the state is now the owner thereof. During the years in which this change was in progress the former owners made no attempt to stay the encroachment of the water or to reclaim the lost land. Meanwhile the railroad company has become the owner of the upland with such riparian rights as attach to it. It would result in intolerable confusion and public inconvenience to hold that in such circumstances the former owners have a perpetual right of reclamation. If that were the law there would be an end to riparian improvements, for no riparian owner could ever be certain of his tenure or title. No upland owner could ever be sure of his access to the water or free from doubt whether such access were a permanent legal right or a mere temporary privilege enjoyed by sufferance. It is obviously a rule of necessity and justice that the loss of land by erosion carries with it all incidents of ownership. (Welles v. Bailey, 55 Conn. 292 ; Nixon v. Walter, 41 N. J. Eq. 103 .)

In the discussion of this subject we have not overlooked certain expressions of Chief Judge Buger in his opinion in Mulry v. Norton (supra), which are relied upon by counsel for the appellants Bowen et al. in the proceeding at bar. In that opinion there are quite a number of quotations from learned text writers and many original observations of a general character relating to littoral and riparian rights, loss of lands by avulsion or erosion, and acquests of land by recession of water, alluvion or accretion, which were doubtless used to illustrate the rule applicable to the specific facts of that case. This becomes evident when we consider the breadth of the discussion and the limited scope of the decision. In that

Part of the land under water, which lies to the west of this upland owned by the railroad company, has been granted by the legislature to individuals (L. 1881, ch. 438; L. 1894, ch. 343), but without prejudice to the riparian rights, if any, of the railroad company. These lands have been condemned in this proceeding and awards have been made therefor. The title to other portions of the land under water is in the state, and these are not affected by this proceeding. The upland owned by the railroad company outside of its right of way was acquired in part by condemnation and in part by conveyances from the owners. It is used for locomotive house, yards, approaches, switches and storage tracks,- and these are, of course, all proper railroad purposes within the scope of the General Eailroad Law. The railroad company claims to be a riparian owner in two separate and distinct capacities.

1. Counsel for the railroad company contends that where its right of way borders upon the waters of the lake it is entitled to the same riparian rights as any upland owner would be if the right of way were not there. The commissioners have decided against this contention and their decision, which was unanimously affirmed by the Appellate Division, is fully sustained by

2. The railroad company further asserts that it is a riparian owner as to the upland which it owns adjacent to its right of way, and which is used, as already stated, for locomotive house, switching, storage and the like. This upland has not been condemned in this proceeding, but the report of the commissioners contains expressions hitimating that as. to this upland no riparian rights exist. In this view we think the commissioners erred. The present record does not definitely disclose the character of the railroad company’s title to these uplands; it simply appears that they were acquired by the railroad company, in part by condemnation and in part by purchase. Even if the question as to the railroad company’s riparian rights were now before us for adjudication, it would be impossible to define their exact nature and extent, since that depends upon proofs which are not in the record. With this brief statement we might properly pass this question without further present consideration were it not for the challenge to the railroad company’s asserted right to hold any lands in fee or by any other title that might invest it with riparian rights. Lest our silence on that subject might he construed as acquiescence in the claim that the railroad company can have no

It is well settled that corporations, limited in duration, may purchase and hold the fee of land, and sell it whenever it is no longer necessary or convenient to keep it. (Nicoll v. N. Y. & E. R. R. Co., 12 N. Y. 121 , 129.). In the case just cited we find the general rule very succinctly stated in the language of Chancellor Kent: “Corporations have a fee simple for the purpose of alienation, but they have only a determinable fee, for the purpose of enjoyment. On the dissolution .of the corporation, the reverter is to the original grantor or his heirs; but. the grantor will be excluded by the alienation in fee, and in that way the corporation may defeat the possibility of a reverter.” (2 Kent, 282.) That is the rule which has been applied in this state. (People & Health Comrs. of N. Y. v. Mauran, 5 Denio, 389 -401; Heath v. Barmore, 50 N. Y. 302 ; Yates v. Van De Bogert, 56 N. Y. 526 , 530.) We can find nothing in the Railroad Law which contravenes or changes this rule. Railroad corporations are expressly authorized to acquire “real property, or any right, interest or easement therein,” either- by purchase or condemnation, and the only limitation upon this right is that every such property right, interest or easement must be taken and used for the purpose for which a railroad corporation is organized, or for some purpose stated in the Railroad Law. (Railroad Law, § 1.) It is common knowledge that railroad corporations expend large sums of. money for station houses, freight depots and other buildings which are all used for railroad purposes, but in the use of which there may be fluctuations and changes which are not permissible as to a railroad right of way. A passenger station or a freight depot may be discontinued or moved for reasons of business convenience

But even if the railroad company has not a title in fee to any of the uplands, it has at least a permanent easement, coeval with its corporate existence, under which it is entitled to exclusive use, possession and control. (Roby v. N. Y. C. & H. R. R. R. Co., 142 N. Y. 176 ; Hudson & Manhattan R. R. Co. v. Wendel, 193 id. 166.) Since riparian rights pertain to the use of uplands in' connection with water upon which it abuts, the question naturally arises what becomes of these riparian rights where a railroad company has the absolute right to the use of the upland during the term of its corporate existence % The question would seem to have been answered in the recent case of Naylor v. N. Y. C. & H. R. R. R. Co. ( 196 N. Y. 544 ), where.this court affirmed a judgment in favor of the defendant, upholding its claim to riparian rights as against an upper upland owner. There the land lay outside of the railroad right of way and was used for a freight yard. Here the land is used for the same and similar purposes. It is possible, in view of the fact that the only opinion in the Naylor case was written in the Appellate

The report of the commissioners and the orders of the courts below should be modified by reciting that they are without prejudice to the railroad company’s riparian rights, such as they may be determined to be when the question arises, in the uplands outside of the railroad right of way not acquired by the city in this proceeding, and as thus modified affirmed, with costs to the appellant railroad company.

I concur in the opinion of Werner, J. It is theoretically possible at least that the railroad company may' have riparian rights attached to certain of the pieces of land owned by it. It is equally possible that ■they have no rights of the kind. The question depends on the terms and character of the conveyances by which the lands were granted to it. The record before us contains nothing but a reference to the deeds and the record thereof, but does not state their contents, and it is not possible in this state of the record to determine whether the railroad company has or has not any riparian rights.

(dissenting). The city of Buffalo is proceeding to take, under the provisions of chapter 142 of the Laws of 1909, a tract of land (certain parts being excepted) within the city and bordering on the eastern shore of Lake Erie, for the purposes of a public park. In the proceeding, the commissioners appointed to ascertain the compensation to be made to the persons interested in the lands to be taken have made a report, which, having been unanimously affirmed by the Appellate Division, presents

The New York Central and Hudson River Railroad Company asserts that it is aggrieved by the determination of the commissioners, in that it denied to the company the ownership of any riparian rights in connection with or incident to its right of way where it is in contact with the lake, and any compensation for riparian rights. The right of way, or roadway, of the company is one hundred feet wide throughout the northerly and southerly length, of about three thousand feet, of the track. It was acquired in part by condemnation and in part through grants. Chapter 142 of the Laws of 1909 fixed as the western boundary line of the lands which might be acquired “the shore line of Lake Erie as shown by a” named map, which the commissioners designated the “Foster Map.” Such shore line was that of 1816, and was many hundred feet west of the present shore line; hence the tract which the city is acquiring extends these many hundred feet west of the present shore line. About seventeen hundred feet of the west side of the. right of way borders on the present shore line and the waters of the lake, because the lands which were east of the shore line of 1816 and west of the present shore line have been removed hy erosion, that , is, by the washing away of them by the waters, gradual and imperceptible as it proceeded. " The harbor line in the lake in front of the tracts as established by the United States government, beyond which docks and piers cannot be erected, is many hundred feet west of the present shore line. There is, therefore, a considerable space between the right of way and the harbor or navigation line, subject to the lawful exercise of riparian rights. The statute authorized the taking

The commissioners rightly held that the statute enabled the city to take in the proceeding all the riparian rights incident to or connected with the tract; and held further, citing as controlling authorities decisions of this court, that the company did not stand in the position of an ordinary riparian owner and riparian rights were not connected with its right of way, for the reason tfiat it holds it for railroad "purposes only, and denied compensation on account thereof. Such determination of the commissioners conforms with the law of this state. It is true that riparian rights in navigable waters pertain to the land abutting on the waters; they are lost to the owner whose land wholly disappears by erosion and are gained by him whose lands the waters reach. A general principle is that lands which are riparian attach to themselves riparian rights. (Mulry v. Norton, 100 N. Y. 424 ; Welles v. Bailey, 55 Conn. 292 .) The railroad company cannot, however, invoke or reap the benefits of the application of this principle, because it holds the right of way and can use it only for the purposes expressed in its charter, those of the construction, maintenance and operation of the railroad. It took the lands, either by condemnation or grant, for those purposes only, and the limi

The counsel for the railroad company argues that the affirmance of such determination of the commissioners permits the company to assert that it owns riparian rights in connection with certain lands immediately east of the part of its right of way contiguous to the waters. Into the • consideration of this claim additional facts enter. The company owns and for more than forty years has owned the lands immediately east of and contiguous to the southern one thousand feet or thereabouts of its right of way where it borders on the lake as stated. Those lands extend easterly from the right of way to the Erie canal, a distance of about two hundred and fifty feet. They were acquired hy the company in part through condemnation and in part by grants. They have been and are used by the company for purposes of a locomotive house and railroad yards. They are a part of the lands excepted by the statute and, therefore, are not to be taken. The commissioners made no award of compensation to the company or any person for riparian rights, if any, connected with them. As they extend easterly to the Erie canal, there are no upland owners east of them to make claims to any riparian rights. The company claims it is aggrieved because the commissioners did not hold that riparian rights attached to those lands.

We dó not deem it necessary to decide in this case

Nor does any valid distinction, at any point in our present consideration, arise from the different uses to which the lands are subjected by the company. No part of the real estate properly held by it is free from or unaffected by the restrictions, subject to which the whole of it was acquired. They equally and impartially apply to the whole of it and constrict its uses. The law does not invest the roadway with any characteristic or quality by which it is acquired and held exclusively for railroad purposes, while the yards and the lands upon which are

The fact that these lands extend from the roadway of the company to the canal and hence there are no other lands to which riparian rights can attach does not tend to establish that riparian rights are appurtenant to them. Riparian rights in navigable waters held by the state as a trustee for the use of the public in common, are the various privileges in the waters, which are incident, under the law of the state, to the ownership of the shore. In such ownership they have their origin and, generally speaking, they are annexed exclusively to land which borders upon the waters. They are valuable property rights' which may be severed from the riparian land by grant, condemnation-, relinquishment or prescription. (Matter of N. Y. C. & H. R. R. R. Co., 77 N. Y. 248 ; Town of Brookhaven v. Smith, 188 N. Y. 74 ; Barnes v. Midland R. R. Terminal Co., 193 N. Y. 378 ; Sage v. Mayor, etc., of N. Y., 154 N. Y. 61 .) The result worked as to the lands of the railroad company, while under its ownership, is, that the riparian rights, which the bordering waters would have attached to the lands were they privately owned, are severed from them, because they are not necessary to or required by the uses or purposes for which the company holds them, and remain in the state as trustee. We hold that the doctrine of the Aldridge

We have considered the other points presented by the appellant railroad company and think they present no error on the part of the commissioners, nor question requiring discussion in this opinion.

The appellants Bowen and others were the owners of certain of the lands which were wholly removed by erosion. They assert that they own the right to reclaim their lands; that the right is a property right and is to he taken through the proceeding. The commissioners held that their title to the lands was lost to them and became vested in the state.

A littoral owner is at the risk of losing his land to the state, in part or entirely, through erosion. He likewise is entitled to any addition to his land through accretion, that is, by the growth, gradual and imperceptible as it progresses, of his land into the situs of the waters, whether the accretion results from alluvial deposits or formations, or reliction, that is, the recession of the waters. He is hound to accept the gradual and imperceptible alteration of the shore or high-water line as an alteration in the boundary of his land. His property line expands as his land gradually and imperceptibly encroaches upon the water and contracts as the water gradually and imperceptibly encroaches upon his land. If the change in the water line takes place suddenly and visibly, that is, through avulsion, the ownership remains according to the original or former boundaries. The title to the waters replacing the land lost through erosion vests in the state in its sovereign capacity for the benefit of the people. (Mulry v. Norton, 100 N. Y. 424 ; Saunders v. N. Y. C. & H. R. R. R. Co., 144 N. Y. 75 ; Sage v. Mayor, etc., of N. Y., 154 N. Y. 61 .)

The waters of Lake Erie have supplanted the entire of the lands of the appellants, and the title to them

The order appealed from should be affirmed, with costs. Cullen, Oh. J. (in memorandum), Gray and Hisoooic, JJ., concur with Werner, J.; Haight and Vann, JJ., concur with Collin, J.

Ordered accordingly.