#### Halfmoon Bridge Company, Appellant, *v.*Acme Construction Company and Others, Respondents.

Third Department,

May 22, 1913.

Canal — suit to enjoin State from interfering with bridge — duty of State to build new bridge under the Barge Canal Act — injunction.

Where in a suit by the owner of a toll bridge located parallel and very close to an aqueduct which carries the barge canal across the Mohawk river, to enjoin the State from interfering with its bridge, except for the purpose of constructing a new bridge required by the Barge Canal Act, it appears that arrangements have been made for the use of the aqueduct over the canal and not to open the canal for several months, so that public necessity does not at this time require the destruction of plaintiff’s bridge, an order vacating a temporary injunction granted in the action should be reversed, and the injunction restored, with leave to defendants to move to vacate the same when the destruction of the bridge shall become necessary to the opening of the canal.

Appeal by the plaintiff, the Halfmoon Bridge Company, from an order of the Supreme Court, entered in the office of the clerk of the county of Saratoga on the 5th day of May, 1913, vacating a temporary injunction theretofore granted.

*Thomas O’Connor,*for the appellant.

*Charles D. Thomas,*for the respondent Acme Construction Company.

*Thomas Carmody, Attorney-General [Henry Selden Bacon Deputy Attorney-General,*of counsel], for the respondents The Canal Board and others.

Smith, P. J.:

From Orescent, Saratoga county, to Colonie, Albany county, across the Mohawk river is stretched a bridge owned by the plaintiff, upon which plaintiff charges toll for crossing. This bridge is parallel and very close to the aqueduct which carries the canal across the Mohawk river at this spot. The scheme for the new barge canal contemplates the abandonment of this aqueduct and the construction of the canal within the river itself. In the process of this construction a dam has been built just below the aqueduct and this bridge, and if that dam is *184completed it will cause the waters in the Mohawk river to rise to such an extent that they will cover the bridge of the plaintiff and result eventually in destroying it. Plaintiff brought this action, therefore, to enjoin the officers of the State from interfering with this bridge, except for the purpose of constructing a new bridge, which it is claimed is required by the Barge Canal Act.

By section 3 of that act (Laws of 1903, chap. 147, as amd. by Laws of 1910, chap. 83) it is provided: “New bridges shall be built over the canals to take the place of existing bridges wherever required or rendered necessary by the new location of the canals.” The Attomey-Gen eral admits upon the argument that under this provision of the Barge Canal Act the State is bound to rebuild this bridge. The position of the Attorney-General, however, is that while the obligation rests upon the State to rebuild the bridge it is not necessarily required to rebuild the bridge prior to the destruction of the old bridge rendered necessary by the opening of the new canal.

In the case of *Lehigh Valley Railroad Co.*v. *Canal Board*(204 N. Y. 471) the court authorized an injunction against the State from interfering with the bridge of the plaintiff in that case unless either they construct as required by statute a new bridge and approaches “ or appropriate the said bridge and its approaches in the manner prescribed by section 4 of chapter 147 of the Laws of 1903.” The State has assumed to appropriate both the approaches of the plaintiff’s bridge and the abutments and its franchises, and claims under this alternative provision mentioned in the *Lehigh Valley Railroad*case that it has the right by reason of such appropriation to proceed and destroy the bridge, whatever may be its obligation to the public hereafter. If, however, the State is required to rebuild a bridge for the benefit of the public there would seem to be no necessity under any facts here appearing for the appropriation of the property of the plaintiff within the authority of the Barge Canal Act. The alternative direction given in the *Lehigh Valley Railroad*case was not necessary for that decision, and it does not appear that the question was squarely presented to the court whether such an appropriation could he made in view of the specific obligation enjoined by sec*185tion 3 of the act to rebuild the bridge. At the time that the *Lehigh Valley Railroad*case was decided the new barge canal was not ready for operation. There was at that time abundant opportunity for the State to rebuild that bridge before such time as it might be desired to open the new canal. The State has been clearly negligent in failing to provide for the rebuilding of this bridge and others before the time when their destruction should become necessary for the opening of the new canal. Under the alternative provision, however, in the *Lehigh Valley Railroad*case the delay of the State might have been upon the assurance there intimated that the property could be appropriated under the act. If we are right, however, in our conclusion that in view of the requirement to rebuild there is no apparent necessity for the condemnation of these rights the question is presented whether, assuming the negligence of the State in delaying to rebuild, the court should issue its injunction to prevent the doing of such acts as are necessary to the opening of the barge canal until these bridges have been built. We are of the opinion that the benefits to the public from the opening of the new canal are so great that the negligence of the officers of the State should not be deemed to have suspended the rights of the State to open the canal until the bridges are rebuilt. The issue of an injunction is to an extent discretionary and the court should hesitate before granting an injunction that will interfere with what would otherwise be great public benefits. In the case at bar, however, it is stated by the Attorney-General that arrangements have been made for the use of the aqueduct over the canal and not to open the new canal at the point in question at least for some months to come. Public necessity does not, therefore, at this time require the destruction of the plaintiff’s bridge. It may be that the State will be able to construct a new bridge before the use of the new barge canal at this point shall render necessary the destruction of the present bridge.

The order should, therefore, be reversed and the injunction restored, with leave to the defendants to move to vacate the same when the destruction of the present bridge shall become necessary to the opening of the barge canal. The State should at once, however, take such steps as are necessary for the rebuild*186ing of the bridges in question, and should proceed with reasonable diligence. Upon such motion as may hereafter be made to vacate this injunction the court may consider whether the State has in good faith used reasonable diligence from this time in the rebuilding of these bridges, and if it should be found that such diligence has not been used will give to such fact such weight as may be deemed proper. The court may also consider what, if any, conditions should be imposed to protect the traveling public and plaintiff, and provide temporary means of passage at the location in question.

All concurred.

Order reversed, with ten dollars costs and disbursements, and injunction restored, with leave to defendants to move to vacate or modify the same when the destruction of the plaintiff’s bridge shall become necessary to the opening of the barge canal.