Citation Numbers: 60 Misc. 584, 112 N.Y.S. 690
Judges: Brown
Filed Date: 10/15/1908
Status: Precedential
Modified Date: 1/13/2023
In 1882 the defendants constructed a through truss, two-span, double-track, fixed bridge across Buffalo river, having 14 feet clearance above mean water level, about 800 feet, southwest of Abbott road in the city of Buffalo, under a franchise duly granted by the plaintiff which did not specify any details for such bridge. In 1884, by chapter 201 of the laws of that year, the Legislature, by amendment to plaintiff’s charter, enacted: “ Buffalo' river within the city is a public highway, but any bridge heretofore built over the same and any swing or draw bridge hereafter built over the same within the city by authority of the common council is a lawful structure.” In February, 1907, defendants asked consent of plaintiff to its renewal of the truss bridge by building a two-span, two-track, plate girder, fixed bridge with new concrete abutments and pier; the common council of plaintiff declined to give such consent. In Hay, 1907, the defendants were notified of the action of the common council in determining that only draw or lift bridges should thereafter be erected across the river, as improved under chapter 527, Laws of 1906, and as required by section 10 of that act. Thereafter, the defendants threatening to build a new fixed bridge at the location of and in place of the bridge erected in 1882, the plaintiff brought this action to restrain the same, the contention of the plaintiff being that the building of such a bridge will make it an unlawful structure; that plans for deepening, widening and putting the river into a navigable condition have been adopted; that such fixed bridge will prevent such work and navigation and constitute a nuisance, and that by the provisions of chapter 527 of the Laws of 1906 defendants must install a swing or draw bridge at their own expense. The contention of the defendants is that they are simply renewing in part the bridge of 1882; are not building an entire new bridge, but are repairing the same, and that instead of making new concrete abutments and piers, as stated in their application for consent in February, 1907, they are to remove three top courses of stone of those foundations, cap them with slabs and widen the abutments with concrete, utilizing several courses of stone and
While it is true that the Legislature has said, in effect, that the present bridge of the defendants is a lawful structure and that any bridge “ hereafter built,” in order to be a lawful structure, must be a swing or draw bridge built by authority of the common council, yet that enactment must be construed with reference to the demands of the river for navigation purposes. It was legislation upon the subject of making Buffalo river navigable for lake-going craft by deepening and widening the river. The authority claimed by the plaintiff to put and maintain the river in navigable condition is derived from the revised charter of 1870, section 16, title IX; while section 15 of the same title, by amendment in 1884, is the authority relative to swing or draw bridges. It is apparent that the only necessity for swing or draw bridges is to permit navigation, and the legislative scheme to put and maintain the river in a navigable condition is to deepen and widen the channel by dredging and by removing obstructions in the shape of fixed bridges by replacing them when rebuilt with swing or draw bridges. This scheme must be considered as a whole; and when the program of making the river navigable by actual dredging, deepening and widening has reached such á stage that a clear channel unobstructed by bridges is needed for the progress of the work and navigation, and a “ bridge hereafter built ” is to take the place of a bridge existing in 1884, it must be of a swing or draw type.
The claim that this section of the charter of plaintiff is unconstitutional, because it deprives defendants of a valuable property right without due process of law, is founded upon the fallacy that defendants under their franchise have a vested right to forever keep and maintain a fixed bridge
The bridge which the defendants contemplate erecting over Buffalo river will not be an obstruction to any navigation of a practical character for at least two years. When the work of deepening the channel to a sufficient depth to permit navigation therein by lake-going craft and for a distance of about two miles from the south line of lot 65 up the stream shall have been completed, then and not till then will a fixed bridge in any manner obstruct navigation. Before there can be any justification for compelling the defendants to incur the large expense of installing a swing or draw bridge for their traffic across Buffalo river, there must be a condition showing a reasonable, practical necessity therefor. While it may be said that the present plans of river improvement demonstrate that in the execution of these plans a swing or draw bridge will be essential at the place of the present crossing, yet actual excavations and dredging for the purposes of navigation at this point will not occur for a long time. Plans have been adopted placing the excavated channel at points under the defendants’ railroad where a swing or draw bridge at the- location of the present bridge would be utterly useless; modifications of such plans place the proposed channel under defendants’
The plaintiff through its common council and commissioner of public works has notified defendants that all bridges hereafter constructed across the Buffalo river shall be draw or lift bridges. Section 9 of chapter 527 of the Laws of 1906 provides that all railroad bridges rebuilt over the proposed new or improved channel of the Buffalo river shall be such bridges as may be determined upon by the common council; that such bridges shall be built at the expense of the railroads. The validity of this statute is attacked by the defendants upon the ground that it is unconstitutional; that it is the taking of property without due process of law. The fact that defendants are compelled to build their own bridges at their own expense in no way infringes upon their constitutional rights. The defendants assert that the exigencies of their business compel them to build a new bridge. The statute in no manner compels the defendants to rebuild this bridge; the plaintiff is not seeking to compel defendants to build a bridge; the simple fact is that defendants have decided and determined independently of the statute that they will build a new fixed bridge and are threat
The defendants claim the right to erect a new girder fixed bridge in place of the one now in use, and that such structure when completed will secure to the defendants the same right to maintain and operate it as a fixed bridge that they have had concerning the present bridge since 1884. The defendants are about to erect such a bridge; and such act being without right or authority, they will be restrained from so doing by the decree to be entered hereon.
The rights of the parties do not demand the immediate execution of such decree. To immediately restrain defendants from building a fixed bridge means that a temporary fixed bridge could not be built and that nothing but a swing or draw bridge would be a lawful structure. To manufacture a swing or draw bridge suitable for the excavated channel and install it in operation would take months if not years of time. The defendants’ present bridge has been condemned by the public service commission; it is unsafe for further use; it is in defective condition; it is far too light for defendants’ traffic. The defendants must provide some temporary means of crossing the river, and they cannot comply at once with such a decree. The defendants have upon the ground a new girder-bridge that can be assembled and put in place of the present bridge, upon foundations to be rebuilt, in a comparatively short time. Such temporary use of the material at hand will be without detriment to its use in some other structure in the future. A swing or draw bridge will not actually be needed within two years; actual dredging will not begin at the location of the bridge before that time, and practical navigation will not be possible for a long time. In view of these facts I am disposed to sus
Judgment accordingly ordered in favor of the plaintiff against the defendants, with costs.
Judgment accordingly.