Saunders v. New York Central & Hudson River Railroad

The plaintiffs are the owners of certain uplands on the easterly shore of the Hudson river at Yonkers, and they brought this action to enjoin and restrain the defendant from maintaining or operating its railroad over or upon a parcel of land sixty feet in width and about one hundred feet in length, situated below the original high-water mark and in front of their uplands. The courts below have sustained the action upon the ground that the plaintiffs have the title to the disputed parcel, and that the possession and use of the same by the defendant is wrongful. The important questions of law involved cannot be discussed or clearly understood without an accurate knowledge of the material facts. Omitting many that are merely incidental and collateral, the following facts, as to which there is no dispute, lie at the basis of the controversy. The defendant’s present corporate organization dates from the year 1869, when the Hew York Central and Hudson River railroads were consolidated into one corporation, under the authority of the statute passed in that year It absorbed these two corporations, and succeeded to all

The railroad was, therefore, built in the bed of the river, across' the bay, in front of the grantor’s uplands, with his consent, and, -except as specially provided in the deed, his original riparian rights were thereby cut down and diminished to such extent as

The plaintiffs have succeeded to Flagg’s title to the uplands through various mesne conveyances, and, except their claim to accretion by filling up the bay east of the railroad, which will be referred to hereafter, they have his title and no other. In June, 1868, the defendant resolved to change its line, or rather, it seems, to make the roadbed wider, and for that purpose to acquire more land. The necessary surveys and maps for that purpose were made and filed, which included the parcel in question, a strip east of and adjoining the seventy-three feet, which extended the roadbed towards the shore and the upland sixty feet, but all below original high-water mark. The defendant procured a patent of this strip from the commissioners of the land office December 26,, 1873, under the provisions of the general railroad act. Laws of 1850, chap. 140, § 25. This is the grant upon which the defendant’s claim of title is founded. But the plaintiffs also claim title, and their claim rests upon the following facts: In the year 1869, and again in 1887, they or their grantors obtained from the state, through the commissioners of the land office, patents for a strip of land under .water westerly of the original exterior line of the railroad, about 120 feet wide and adjoining the railroad, as was apparently contemplated by the Flagg deed, but these patents did not embrace any part of the parcel in question, which is wholly easterly of the roadbed as originally constructed. In the year 1853, one of the plaintiffs’ predecessors in title of the uplands filled in the bay between the original shore and the railroad by depositing therein earth taken from the banks and bluffs on the uplands, but this filling did not entirely reclaim the submerged land, as the water, especially at high tide, continued to flow over it to some extent. But in the jrnar 1870, when the defendant was about to increase the width of its roadbed, it made extensive additional filling on the strip in question and raised it up on a grade with its original roadbed and then laid down additional tracks upon it, and, having obtained the grant from the state of December 26, 1873, has since substantially operated its railroad upon a roadbed 133 feet in width. The plaintiffs have no grant whatever from the state or otherwise of the parcel, but rest their claim of title, aside from their general riparian rights, upon the reclamation of the land by filling up in 1853.

Accretion is undoubtedly one of the modes by which a title to-land may be acquired, but whether any title vested in the plaintiffs or any of their grantors in that way, under these circumstances, must be considered. The general rule is that, in order to give a littoral proprietor title to land by accretion, the increase must be by such imperceptible degrees that, although persons are able to perceive from time to time that the land has Increased on the water line, they could not perceive the progress of the accu

But that principle has no application to this case, for the reason that here no one filled up any land to which the plaintiffs or any of their grantors had title, and the plaintiffs’ grantors could not acquire title by filling up lands under water that belonged to the state. The plaintiffs’ contention in this respect is answered by the remarks of Earl, Oh. J., in the case of the People ex rel. Blakeslee v. The Commissioners of the Land Office, 135 N. Y. 447 ; 48 St. Rep. 432 , where, after discussing some other claims of the relator, he says: “ But he seems to place some reliance upon other facts. A few years before the grant to the company, he, being president of the company, caused the refuse of its foundries to be deposited in the water west of the railroad upon some of the land under water, subsequently granted to the company, and by this deposit the land was raised above the water. He certainly acquired no title to the land by thus entering upon it without any right and filling it up, and he did not thus become the proprietor of the 1 adjacent land,’ within the meaning of the statute above quoted. As between him and the state, it still legally remained land ‘under water,’ to be dealt with as such.”

There is not, I think, any authority in this state to sustain the propostion that an adjacent owner can acquire title to lands under the waters of the Hudson river below high-water mark by filling it up, and the contention certainly has no foundation in reason or justice. ITo rights vested in the upland owner in virtue of these acts that he did not possess before.

This conclusion necessarily leaves the plaintiffs without any right to the parcel in question that can be derived from its title or ownership and goes far to defeat the action, since they can succeed only upon the strength of their own title and not upon the weakness or defects of the defendant’s. But to rest here would leave open for "further controversy some important, questions that are raised by the objections urged against the title of the defendant, and which are necessary to decide in order to define with accuracy the rights of the parties. The learned counsel for the plaintiffs insists that the grant from the state to the defendant of the parcel in question by the patent of December 26, 1873, is ab

The main assault is based upon the proposition that the state had title to this land, not as proprietor, but as sovereign and trustee for the public. The contention as to the nature of the title cannot be denied, but the conclusion sought to be drawn from the fact does not follow. The question was decided in this court in Langdon v. The Mayor, 93 N. Y. 129 , and Mayor v. Hart, 95 id. 443, and has recently been examined with great learning by the supreme court of the United States in the case of Illinois Central R. R. v. Illinois, 146 U. S. 387 .

The case involved the title to a vast tract of land under the waters of Lake Michigan in and around the harbor of Chicago, ■extending a mile east of the extejior line of the original roadbed •of the railroad, which the state assumed to grant to that corporation in 1869. It was held that the- ownership, dominion and .-sovereignty over lands covered by tide waters, within the limits of the several states, belong to the respective states within which they are found, with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the public interests, and subject to the paramount right of ‘Congress to control their navigation so far as necessary for the regulation of commerce with foreign nations and among the states, and that the same rule was applicable to lands under the waters of the great lakes. That the original roadbed, two hundred feet wide, with the necessary sidings and crossings which had been granted to it by the state, under a prior grant and various ordinances of the city of Chicago, was a reasonable public use, and no ■encroachment upon the domain of the state, and was valid. But that the grant extending one mile easterly of the line of the roadbed amounted to an abdication of its sovereignty and control by' the state over the waters, and, in effect, a breach of the trust under which it held the same, and, therefore, revocable by the action of a subsequent legislature. The doctrine of that case, with respect both to what was sustained and what was condemned, amply supports the grant in this ease, even if there was any ground for .supposing that our own decisions do not completely settle the

There is nothing in any of the cases in this court to the contrary. In fact the point was not involved in any of them. In the N. Y. C. & H. R. R. R. Co. v. Aldridge, 135 N. Y. 83 ; 48 St. Rep. 373 , both the upland proprietor and the railroad bad a grant from the state of the same land under water, but that of the upland owner was four years earlier in point of time, and it was held that his was the superior title. Except for the prior grant the power to patent to the railroad was assumed. In the Rumsey case, when it first came before the second division, it was held that a railroad company that had constructed its roadbed alqng the shores of the river was not an “ adjacent owner ” within the meaning of the statute, and that an additional grant made to it by the state did not cut off the riparian rights of the upland owner. Rumsey v. N. Y. & N. E. R. R. Co., 114 N. Y. 423 ; 23 St. Rep. 928 .

When the same case was here again 133 N. Y. 79 ; 44 St. Rep. 248 ; 136 N. Y. 543 ; 49 St. Rep. 683 , it appeared that the railroad had cut off the plaintiff’s access to the river by building its road upon his land without any grant or condemnation proceedings, and we held he was entitled to damages. None of these eases question the right of the state to make grants of land to railroads for railroad purposes, and in all of them the right is recognized.

It it said that the commissioners were expressly prohibited from making grants of land under the waters of the Hudson river to any one but the adjacent riparian owner, and the defendant, not being such owner, could take no title by the grant. This proliibition is found in the Eevised Statutes, passed at a time when grants for railroad purposes were not contemplated (1 R. S. 208, § 67); but no such limitation is to be found in section 25 of the act of 1850, authorizing grants for railroad purposes. To hold that a railroad company could not take from the grant of the state in such cases, unless it was an upland proprietor, would render the statute practically inoperative. That was a subsequent and independent enactment for a special purpose, enlarging the power of

What these rights are has been decided in the Rumsey Case, 133 N. Y. 79 ; 44 St. Rep. 248 , and since that decision re-affirmed in the case of the Illinois Central Railroad v. Illinois, supra. They embrace the right of access to the channel or navigable part of the river for navigation, fishing and such other uses as commonly belong to riparian ownership, the right to make a landing wharf or pier for his own use or for that of the public, with the right of passage to and from the same with reasonable safety and convenience. But the trial court has found that the title to this parcel of land was not in the defendant but in the plaintiffs, and, so far as the judgment rests upon these findings, it cannot be sustained. It practically deprives the defendant of all use or possession of the land for any purpose, and requires it to wholly discontinue the operation of its railroad upon it. We have already seen how the rights of the upland owner were affected by the grant from Flagg, under which the defendant acquired the right to operate its road upon the original seventy-three feet. The only ground of complaint that the plaintiffs have is with respect to such additional obstructions to the enjoyment of their riparian rights as have since that time been created by the defendant’s acts in adding to the width of its roadbed in the manner described and in the manner of its use. The plaintiffs cannot complain of the operation of the road by.the passage of trains, since their remote grantor consented to it by his grant to the defendant, without limitation or restriction of any kind. Whether any additional obstruction to the enjoyment of the rights incident to upland ownership have been created by the defendant since it obtained the grant of Dec. 26, 1873, was, I think, under the circumstances, a question of fact.

The fact that the defendant is now operating its road upon a bed sixty feet wider than before the grant, but upon its own land,, does not furnish any substantial ground for equitable interference. The trial court has found, however, that the rails and ties placed by the defendant on its roadbed so project above the surface of the ground as to impede the passage of men, horses and carriages over the road, and to obstruct access to the river from the upland, and that at times it maintains standing cars thereon, thus interfering with the plaintiffs’ riparian rights. This does not warrant that part of the judgment wiiich enjoins the defendant absolutely from operating its road upon the sixty feet, and requires it to remove the track and ties and never to replace them, but it does entitle them to some measure of relief. The defendant, under the covenant in the deed from Flagg, as well as by its general relations and obligations to the plaintiffs as riparian owners, is bound to construct and maintain a suitable, safe and reasonably con

Where the roadbed passes between the uplands and the usual place of access to the river, and cannot be conveniently crossed, it is the duty of the corporation, at its own expense, to construct ■and maintain convenient passes, or roads, across or under the railroad for the passage of persons, cattle, carriages and teams from the uplands to the river front. The findings in this case are to the effect that the defendant has not performed these duties and obligations, so far as the plaintiffs are concerned, and that it has interfered with the enjoyment of their riparian rights to the extent and in the particulars mentioned. The extent of the relief to which they are entitled is that the defendant shall be required by the judgment to perform these duties and obligations.

This result is in harmony with the doctrine of the Rumsey case, supra. There is a marked difference between that case and this, at least in the form of the action. In the former the plaintiff attempted to protect his riparian rights by an action to recover damages. In this case there is no claim made for damages sustained, but the owner has asked simply equitable relief against any future invasion of his easements. In the former case we held, that so far as the owner had sustained damages in consequence of any encroachments by the defendant, that he was entitled to recover. In this case we hold that in so far as the facts found justify the conclusion that the defendant has invaded the plaintiffs’ rights, or is invading them, they are entitled to relief. In that case it had been adjudged in previous actions that the defendant was obstructing access to the river without any' right or title whatever as against the upland owner. In the present case we hold that the defendant has a valid grant of the land from the state, good against all the world, except the plaintiffs’ right of access to the river, and that, so far as. necessary for the protection of these rights, the plaintiffs aré entitled to prevail.

The judgment should, therefore, be modified in such manner as to give to the plaintiffs this relief, and this alone. The order should be so framed as to accomplish this result, and, if its terms cannot be agreed upon by the parties, then it must be settled by one of the judges of this court.

This judgment, as thus modified, should be affirmed, without ■costs to either party.

Peckham, J.—The court below and the counsel for the plaintiff upon the argument before us have as its seems to me misconceived

All concur. Judgment accordingly.