New York Cement Co. v. Consolidated Rosendale Cement Co.

tain such canal in proper condition for such use. Its contract with the state upon its organization under such act of 1823 was to that effect. I also concede that such company had no right to sell such canal, nor any part thereof that would interfere with its full performance of such obligations, unless authorized to do so by act of the legislature. Such is the well-settled rule of law. I also concede that if such company had sold to the Cornell Steamboat Company by virtue of an act that merely authorized it to sell and convey its canal, even though no express permission to sell any of its franchises was included therein, the purchaser would, by implication, take the property and all franchises necessary to enable it to> operate it as a canal, and also would be held to have assumed all the obligations which the Delaware & Hudson Canal Company owed to the state, and which were connected therewith. In other words, so far as the use of the property was concerned, it would succeed to the rights which its grantor had, and assume its obligations to maintain the canal as a public way. But the serious question in this case is whether, under the statute of 1899, any such obligation on the part of the purchaser has been provided for, or can be implied. It is to be noticed that no permission has in terms been given by that act to the Delaware & Hudson Canal Company to sell or transfer any of its franchises. If any were necessary to the use of the property by the purchaser, they must have been acquired by implication. So, also, there is no direct provision that the property sold should be taken by the purchaser subject to any of the obligations which the Delaware & Hudson Canal Company had assumed towards the state concerning it. There is no expression in the act indicating a purpose on the part of the state that notwithstanding the sale the public use of the canal shall remain intact. If any such obligation did follow, it rests upon implication only. In my judgment, no such implication exists. The provisions of the act repeal it. Section 3 begins with the suggestion that the canal is no longer useful for the purposes for which it was constructed; that the canal company can now transport coal from the Pennsylvania mines to the markets of the state more economically by its railroads than it can by the canal. Therefore it, in substance, enacts that, whenever such company desires, it may “lease, sell or discontinue to use or maintain said canal, or any parts thereof, which in their judgment are no longer necessary for said purposes.” The purposes alluded to are the transportation of coal from the mines to the river. Here is a distinct permission to cease to maintain the canal; that is, to abandon it as a public way. If the company need no longér maintain the canal, — if it may cease to use it as such, — then the obligation which it assumed in its charter, to operate and maintain it as a public way, is discharged. The company being released from that obligation, it is no longer impressed upon the property. So, also, the permission to sell indicates the same purpose on the part of the state. It authorizes the company to sell in parcels. This provision alone repels the idea that the purchaser was to take the property burdened with the obligation to maintain it as a public way. Surely it cannot be supposed that the canal was to be held and operated as a public way from Honesdale to the river, by the united action of as many different purchasers as the Delaware &

Hudson Canal Company might succeed in finding. It seems absurd to suppose that any purchaser could be found for a part of the canal, if he were compelled to assume all the duties that the Delaware & Hudson Canal Company were, obligated to perform concerning it. But, moreover, such “parts” as the company were authorized to sell were those which, in their judgment, were no longer necessary for their purposes. Is it to be supposed that the legislature intended that the purchaser of such a part should be bound to keep it open as a public way, and that all such purchasers must unite to keep the whole line of iio miles in operation and open to the public use? Were the purchasers obliged to operate as a canal those parts which the Delaware .& Hudson Canal Company sold as no longer useful for that purpose ? Did the state intend to demand from the purchaser duties which it had concluded ought no longer to be exacted from, the Delaware & Hudson Canal Company ? It seems to me that the plain and only purpose of the statute was to release and discharge the Delaware & Hudson Canal Company from its liability to operate and maintain the canal as a public way, and allow it to sell or dispose of the same, or any parts thereof, as it might desire. The implication claimed by the respondent does not arise in this case, because, the grantor having been discharged of its obligation, the grantee took the property freed from the same.

Acting under this statute, the Delaware & Hudson Canal Company sold the whole canal to the Cornell Steamboat Company. That was, in effect, an abandonment of it as a public way. It is urged that, because it included “its franchises” in the conveyance, it cannot be ■deemed such an abandonment. It is clear that neither party to the conveyance understood that thereafter it was a public way, because the grantee expressly covenants to perform all the obligations required of the Delaware & Hudson Canal Company by section 4 of the act of 1899, when the canal shall cease to be used as such. Evidently the Cornell Steamboat Company understood that it was purchasing the private property of the Delaware & Hudson Canal Company, and that when purchased it became its own private property, freed from any of the burdens imposed by its charter upon the Delaware & Hudson ■Canal Company. Acting upon this understanding, it subsequently .sold the canal in several different parcels to as many different owners. In all parts, as I understand the record, except the 12 miles in question, its use as a water way had been abandoned. It has been filled up .and destroyed. As to such 12 miles, the defending company evidently purchased it for its own private use. It needed it as a means of transporting its cement to the Hudson river. Rather than have it destroyed, it purchased it, and at its own expense maintains it as a private way. It seems clear that such action on the part of the Delaware & Hudson Canal Company and its grantee was a complete abandonment of the canal under the statute. It had ceased to be a public way when the defendant company purchased it. Evidently their purchase was made because it had ceased to be such, and because the rights of the public, secured by the charter of the Delaware & Hudson Canal Company, had been surrendered by the act of 1899.

It is urged that this construction of the statute enables the Dela

ware & Hudson Canal Company, through the pretense of a sale to a purchaser in its own interest, to operate the canal freed from the obligations imposed by its ' charter. Even if it could so evade its chartered obligations, the imposition by it of excessive tolls would be no more burdensome upon the public than the utter destruction of the canal would be. It is not disputed that the state had the power to permit the Delaware & Hudson Canal Company to utterly destroy the canal, and I therefore assume that it had such authority; and, if it had'such power, I see no reason why it might not enact that thereafter such company might hold and operate the canal as its own prívate property. But such is not the question presented by these appeals. To maintain these injunctions, the plaintiff must establish the liability of the defendants to operate this 12 miles of the canal as a public way, subject to the provisions as to tolls contained in the charter to the Delaware & Hudson Canal Company. By what sort of a title the Delaware & Hudson Canal Company would hold the property constituting its canal, after the act of 1899 had discharged it from its obligations to the public concerning it, or to what uses it might thereafter put it, or what sort of rights in that respect its grantee might take or did take, we are not called upon to determine, beyond the question whether either must thereafter maintain and operate it under the obligations imposed by such company’s charter. . If this defendant company took the 12 miles of canal burdened with obligations imposed, as to it, by the charter of the Delaware & Hudson Canal Company, then it must not only operate it for the tolls fixed by such charter, but also for so long a time as the charter requires, because the obligation to keep it open for public use is as imperative as -that concerning the tolls to be charged. That such burden followed the property, or any portion thereof, after a sale by the Delaware & Hudson Canal Company, I do not believe, and therefore I am of the opinion that neither the public nor this plaintiff has any right to navigate the same. The question presented is not whether the defendant may use it as a private canal, or as a public cánal upon its own terms, but whether, having become the owner of the lands and waters constituting the canal, it must maintain and operate it as a public way. Being of the opinion that no such burden was impressed upon the property when it acquired the same, I must hold that the orders be reversed, and the injunctions be vacated.

Order reversed, with $10 costs and disbursements. All concur.