Tillotson v. Hudson River Railroad — 9 N.Y. 575

Majority

p. 575

Tillotson against The Hudson River Railroad Company.

Headnote

The defendants constructed their road across a deep bay upon the Hudson river, about nineteen hundred feet distant from and in front of the plaintiff’s wharf, placing in their structure a sufficient draw, as required by the 15th section of the act incorporating them {Laws of 1846, 279); Held, that the

p. 576

plaintiff’s wharf was not “ cut off’? by the railroad, within the meaning of that section; and that an action would not lie to compel the defendants to extend the wharf across the line of the road, or to otherwise improve the same.

That the provision of that section requiring the defendants, in case any wharf or dock should be cut off by the railroad, to extend or so improve the same as to restore it to its former usefulness, was applicable only to wharves other than those within the hays, streams and inlets to which the defendants were required to furnish access by means of a draw.

This action was brought to compel the defendants to extend a wharf of the plaintiff, situated upon a bay of the Hudson river, across the line of the defendants5 road, so as to give the plaintiff a river front upon his wharf outside of the railroad. The complaint avers the ownership by the plaintiff of a farm in Dutchess county, fronting on the Hudson river, and the erection of a wharf or dock in front thereof, which was used for commercial purposes; the incorporation of the defendants in 1846, and the location of the line of the road in 1848, partly on land in rear of the plaintiff’s dock and partly on land under water in front of his farm, and the grant of the land covered by the dock to the plaintiff, in 1849, by the commissioners of the land office. The plaintiff then avers that in 1850 the defendants changed the location of their road from the line originally located to a line “ crossing the bay at some distance in front of said dock, so as to cut off all navigation between the same and the waters of the Hudson river outside of the said railroad, and since that time, and during the summer of the year 1851, have constructed their road on said last mentioned line by a structure of pile bridging, entirely cutting off said dock from the navigable waters of said river, and leaving no access to or from the same except through a drawbridge, a passage sometimes difficult and dangerous, and always liable to be attended with delay and inconvenience.” The plaintiff then avers that he laid out and constructed a road through his farm from the dock to the public highway in rear of the farm; and after setting

p. 577

forth the 15th section of the defendants’ charter, avers “ that the only practicable improvement which will in any degree restore said dock to its former usefulness is its extension to such a reasonable distance beyond the outer line of said railroad, as to enable the plaintiff safely and conveniently to use the same outside of the said railroad, as he was before accustomed to do.”

The defendants deny the erection of a dock by the plaintiff which was used for commercial purposes, ■ and allege that if any erection of the kind was made by the plaintiff it “ was for his private use and pleasure; the water in front for a great distance not being navigable at low tide for boats of any considerable draft, the same being situated in a deep bay about half a mile from the channel of the Hudson river, and no boats being accustomed to navigate the same for commercial purposes; and that such erection was in subordination to the rights of the people,” and of the defendants to construct their road; and they deny that the public had a road or highway to said wharf. The defendants demur to the allegation of the complaint in respect to the change of the location of the line of the road and the effect of the structure in hindering access to the plaintiff’s wharf. They" deny that it is practicable to extend the wharf as claimed, or that they are bound to attempt it, “ the railroad being out in the river near half a mile west of said plaintiff’s pretended dock, and a good and complete drawbridge and equipment thereto being furnished and always ready to provide for any navigation by the several owners of farms living within said bay, and as is necessary to provide for the free passage of such vessels and boats as heretofore have or now can pass into and from the sameand they annex a map of the premises to their answer. The plaintiff demurred to that part of the answer relating to the highway leading to the wharf, and also to that part last stated having reference to the practicability

p. 578

of the extension of the dock, the furnishing a draw bridge, &c.

The demurrers were argued before Mr. Justice Barculo, and judgment upon them for the defendants was affirmed at general term, in the second district. ( 15 Barb., 406 .) The plaintiff appealed to this court. The cause was submitted here on printed arguments, by

G. Tillotson for the appellant.

Thomas II. North for the respondents.

delivered the opinion of the court.

The parties have adopted an entirely novel and very questionable form of pleading in this action. The defendants have singled out parts of the complaint, which is entire, containing a statement of but one cause of - action, and have demurred to isolated facts, and have answered the remaining allegations. The plaintiff, so far from objecting to this, has imitated the example, and in his turn demurred to certain facts alleged in the answer, and making parts of an entire defence. There is no authority for this practice. A demurrer can only be interposed to an entire cause of action, as alleged in the com plaint, or to an entire defence, as put forth in the answer. But as the facts upon which the plaintiff founds Ms claim of right sufficiently appear from the statements, counter statements and admissions of the' parties, the principal question may be properly decided upon this appeal.

The claim of the plaintiff is based upon the 15th section of the act incorporating the defendants (Laws of 1846, p. 279), .which is in these words : “ The said corporation is authorized to build or erect a bridge over the Spuyten Duyvel creek and other navigable streams or inlets, for 'the passage of the said road or ways from or to the city of New-York. Such bridges shall be substantially constructed, and shall contain a draw of sufficient width to admit the passage

p. 579

of vessels adapted to the navigation of said river, streams or inlets, with standing masts, and shall be so attended as not to obstruct, delay or hinder the progress of any vessel navigating said river. They are also required to construct such bridges as may be necessary to provide for the free passage of such vessels and boats as heretofore have or now can pass into and from the same (the bays that may be crossed by said railroad); and if any wharf or dock shall be cut off by the said railroad, the said company shall extend or so improve the same as to restore it to its former usefulness,, so far as it may be practicable to do so. And the owner or owners thereof are hereby authorized to occupy the river front, outside of said railroad, for the erection and use of wharves or docks.”

But for the authority conferred by the act- the defendants would have had no right to bridge the navigable streams, inlets and bays mentioned, or do any act which would interfere with their navigation, or in any manner obstruct them as public highways. The charter contemplated the building of the road partly on the dry land and partly on the river flats, and across the navigable bays and inlets. It must have been foreseen by the legislature that the road thus located would unavoidably in some degree obstruct and impede the navigation of the bays and inlets which it might cross, and that the navigable intercourse between the shore and the channel would be cut off and closed, unless some duty was imposed upon the corporation to keep it open.. The object of the 15th section of the statute was to protect that navigation, by requiring the corporation to do what was deemed by the legislature to be expedient and necessary for that purpose. It therefore provides for draw-bridges, of a proper width and construction to admit the passage of vessels adapted to the particular navigation at the points crossed, and that they shall be so attended as not to obstruct, delay • or hinder the progress of such vessels.

p. 580

The draw-bridges thus required to be constructed, maintained and attended are all the protection and facility afforded by the statute against the obstruction occasioned by the road in crossing the streams and inlets. The shores, wharves and vessels’ within the inlets have in this way, and in this way only, a navigable communication with the river.' The word “ inlet” seems to be used by the statute to denote the indentation in the shore, at the mouth or outlet of a navigable stream falling into the Hudson river, and the word “ bay” to describe an indentation or curve where there is no such stream.

■ After providing for draws of a sufficient width to admit the passage of vessels adapted to the navigation of the river, streams or inlets, the corporation is required, by the section under consideration, to construct such bridges as may be necessary to provide for the free passage of such vessels arid boats as “ heretofore have or now can pass into and from the" bays that may be crossed by said railroad.”

■ There is no reason in the nature of things why the bays, or the wharves within the bays, should be more effectually guarded against obstruction than the inlets or the wharves within them. If any distinction in this respect should be made between them, it would seem that the inlets were entitled to the more careful protection, bécause in some instances at least they are navigable by larger vessels. The clause on which the plaintiff relies for the extension or improvement of his wharf, has clearly no application to wharves within the inlets. A careful reading of the statute authorizes the conclusion that the same measure of protection, and no greater, was intended for the bays as for the inlets; and that the draw-bridge was all that was intended for either. The plaintiff founds his claim upon the last clause of the section.

. Bearing in mind that the corporation were authorized to occupy, for the purposes of their road, the river flats covered by water, and for that purpose to pass in front of docks and wharves not situated either within an inlet or a bay, we

p. 581

are of the opinion that such clause was not intended to apply to the inlets or bays, or to the wharves within either, but to the wharves on the shore where there was neither bay nor inlet. The bays and inlets, and the wharves within them, had already been provided for; wharves not within either had not. Whether there are any cases where the road passes m front of wharves so situated is not material to the question in hand. The act was passed to meet such cases as might. occur. The road had not been located nor the surveys made when the act was passed; it was, therefore, proper that they should be provided for, and the clause accordingly provides for them. The bays were “ crossed” but not “ cut off” within the meaning of the act; that is to say, they were not cut off from the navigable communication with the river channel. Draw-bridges were directed to keep that communication open and to prevent their being cut off. If the bays were not “ cut off,” the wharves within them were not, for the same communication, was open to them. But wharves not within the bays or inlets were “ cut off” wherever the railroad should pass between them and the channel; because draw-bridges were not directed in those cases, and therefore it was that the company was directed to extend or improve them, for the purpose of keeping open the communication between them and the channel.

We are asked by the plaintiff, to interpret the clause in question as if it read thus: “ And if there be any wharf or dock within the bay so crossed by the railroad, the company shall extend or so improve,” &c. But that is not the language nor the import of the language' of the provision. The clause does not speak either expressly or by fair implication of a wharf or dock "within the bay crossed by the road. On the contrary, the difference in the nature of the remedy proposed for the mischief apprehended, as well as the difference between the language of this clause and the language of those which precede it, show that the clause in question was intended as a separate and independent pro

p. 582

vision, applicable to cases not previously mentioned in the section, and not applicable to the case presented by the plaintiff. '

A very serious practical difficulty would attend .the extension of docks situated on bays, even if the defendants could be compelled to straighten the line of the river on the east side in all its length as between the riparian owners. The river line would be much less when made straight than upon the curves in the natural margin, and. how and by whom shall this diminished front be divided and apportioned to the owners ? So, two wharves upon different angles of the bay,. upon being extended in right lines, might cross each other before reaching the line of the road, and if the wharves are not to be extended in right lines and at right angles with the shore where placed, who shall direct the course of the extension ? Upon the true construction of the act, and for the reason’s. given, the judgment of the supreme court must be affirmed, with costs of the appeal.

Johnson and Selden, Js., gave no opinion. .

Judgment affirmed.