#### The People of the State of New York, Plaintiff, *v.*The Delaware & Hudson Company, Defendant.

(Suprreme Court, Albany Special Term,

January, 1912.)

Navigable waters — What are navigable waters — Bights of the public and interference therewith;— Nuisance — Ownership of lands under waters, and grants thereof — Grants to and acquisition by private owners — Bailroad company may not appropriate river bed to its own use — Injunction.

The fee of the land under water in Island creek at Albany, N.- Y., an arm of the Hudson river and a navigable stream in which the tide ebbs and flows and which has been used by the public from time immemorial, is in the State up to high-water mark and the Delaware and Hudson Company, an upland owner or lessee of lands bordering on each side of the creek for a part of its length, cannot acquire the title to such land under water by filling up.the creek.

The filling in of the land under water in the creek by said company within the area of its ownership of the upland constitutes a nuisance, 'and the court may not only restrain any further filling in by the company but may compel it to remove-what it has already put in.

The same principle applies to a trestle across the creek maintained by the company over which its railroad tracks run to gain access to Rensselaer island which is bounded by the creek on three sides; and the fact that the trestle in the absence of a-grant of land under water at' the point of its erection has been there for nearly forty years prior to the commencement of an action to remove it gives the company no prescriptive right to maintain it in such a way as to impair the navigation of the creek. •

The statute (L. 1906, ch. 689, 1 I) which provides that “the bulk-head line of * * *- Island creek, .in front of the city of Albany is hereby fixed and established according to a map ” cannot be deemed to be a grant, by the State of its lands below high-water mark and out to such line but must be construed to mean that' the State has established that line to fix the point beyond which no upland owner can go in erecting walls or docks for his accommodation in securing access to the navigable channel.

It appearing that during said period of nearly forty years important industrial establishments have grown up on Rensselaer island which depend upon the railroad across said trestle for the conveyance of their freight, the court -will not use the power *323of injunction against the company in such a way as to impair to a considerable extent the commercial importance of the city' of Albany or the important industrial interests on Rensselaer island which depend largely upon the facilities afforded by the railroad company only.

A mandatory injunction will be granted requiring the company to remove the trestle and its piles from the bed of the creek and to restore its original depth so that navigation thereon may be fully restored as of the time when the company began filling in; but the granting of the injunction will be on condition that defendant within six months be permitted to build a draw, lift or-suspension bridge in the place of the trestle,- to afford necessary railroad connection to the industries upon the island.

Action for an injunction.

• Thomas Carmody, Attorney-General,. and Wilber W. Chambers, Deputy Attorney-General, for plaintiff.

Lewis E. Carr, for defendant.

.Chester, J.

The action is brought for a mandatory injunction requiring the defendant to remove from Island creek certain encroachments and embankments placed therein by it and to remove a certain trestle or bridge crossing such creek and the supporting timbers thereunder erected by the defendant.

The complaint alleges that Island creek is a navigable stream, being an arm of the Hudson river in which the tide ebbs and flows, and that it has been used from time immemorial by the public for navigation.. These allegations are not denied by the' answer. The. creek in question is from three to four miles in length and forms the northerly, westerly and southerly boundary of Rensselaer island on the west side of the Hudson river. The defendant is the upland owner or lessee of lands for about a half mile in length, bordering on each side of the creek from the bridge crossing it at the southerly end of Green street in the city of Albany to a point some distance south of the trestle above named, and it is this portion only of the creek where it is claimed the encroachments have been made. The defendant’s tracks and right of way for its railroad run along the northwesterly *324side of the creek between the points mentioned. This condition has existed' since about 1870, when the Albany and-Susquehanna Railroad Company leased all its property under a practically continuous lease to the president, managers and company of the Delaware and Hudson Company, the name of which company has since been' changed in due form of law to the Delaware and Hudson Company — the present defendant. Formerly the creek was much used for. boating, pleasure and business purposes; and steamboats drawing four or five feet of water as well as other smaller craft navigated the stream. The evidence shows very clearly that for some twenty years the defendant has- been almost continuously dumping stone, ashes and refuse matter on the banks of the creek on both sides and filling it in, so that its width has been' very materially lessened in several places, and so that it is much more shallow than formerly. The' evidence also shows that, as fast as the creek was filled in on the northwesterly side, additional tracks were built by the defendant on the made ground there. The extent of. these encroachments on the sides of the creek is shown on plaintiff’s exhibit 9. It also appears that about 1871 or 1872 the defendant erected a trestle or wooden bridge, supporting a single track, running across the creek at an angle of about forty-five degrees, near the southerly end of the place in question, which trestle or bridge was supported by piles driven into the bed of .the stream very close together. About ten or twelve years ago this old trestle or bridge was taken' away, the piles supporting it were sawed off near the water and left standing therein, and a new trestle or bridge was built along the easterly side of the old one, having thereon two tracks of the defendant’s railroad, which bridge is supported by other piles driven into the bed of the stream. These piles are so thick that they dam up the creek to a considerable extent, so that a rowboat cannot pass through it at low tide. The piles cause rubbish and refuse floáting in the stream to collect, settle and to be anchored there. The water at that place, instead of being four or five 'feet deep as formerly, is now at low tide but two or three inches deep; -and the tide does not ébb and flow at that *325point as formerly. It does not appear that the defendant, ever had any grant from the State of lands under water at the place in question, nor any license or grant of any kind to erect the trestle or bridge across the creek; yet it has been there in one form or another for somewhat less than forty years before this action was begun. During that time many important industrial establishments have grown up on Rens-. selaer island which depend upon the railroad across this trestle for the conveyance to them of their freight.

The Legislaturé in 1906 passed an act to provide for the improvement of the river front in the city of Albany. Laws of 1906, chap. 689. In section 1 of that act it was provided that “ the bulk-head line of * * * Island creek, in front of the city of Albany is hereby fixed and established according to a map made by the city engineer of the city of Albany, dated Hay 22, 1903, and on file in the office of the superintendent of .public works of. the State of Hew York.” A copy of that map was filed in that office and has been received in evidence. The defendant insists that the bulkhead line established by the act and shown upon the map amounts to a legislative declaration and covenant on the part of the State that at no time in the. future will it require from the upland owners the possession and use of the land between that line and the original high water mark line of Island creek; and, therefore,' that the upland owners can fill in in front of their land to such bulk-head line without any interference on the part of the State and without being called upon by the State to remove therefrom.

There can be no doubt that the fee of the land under water in navigable streams up to high water mark is in the State (Illinois Central Railroad v. Illinois, 146 U. S. 387) ; and, while the owner of the uplands has a right to occupy and use the land between high and low water mark for the purpose of building and maintaining docks thereon in order to get. access to the navigable stream and for any other legitimate private purposes not inconsistent with the rights of the public (Sission v. Cummings, 35 Hun, 22), yet he cannot acquire title to the land under water belonging to the State by filling -it up; and, as between him and the *326.State, it still remains “ land under water ” notwithstanding he has filled' it in. Saunders v. N. Y. C. & H. R. R. R. Co., 144 N. Y. 75; People ex rel. Blakesly v. Commissioners, 135 id. 447. The establishment of a bulk-head line cannot, in my opinion, be deemed to be a grant by the State of-its lands below high water mark and' out to such line, but it .does mean that the State has established that line to fix the point beyond which no upland owner can go in erecting wharves or docks for his accommodation in securing access to the navigable channel.

Where a riparian owner' has filled in lands under water belonging to the State in a navigable stream it is a nuisance, and as such the court has the power not only to restrain the party from further filling in, but also to compel him to remove what he has already put in. People v. Vanderbilt, 26 N. Y. 287; 28 id. 396; People v. N. Y. & Staten Island Ferry Co., 68 id. 71.

The same principle applies with respect to the trestle maintained by the defendant over which its tracks run to get access to Eensselaer island. The defendant insists, however, that the trestle has been maintained for such a length of time by the defendant that it has a prescriptive right to occupy and continue it there. A navigable stream is a public highway in'which all the people of the State have an interest; and, in' the absence of a provision making the State subject *to*the Statute of Limitations, no title by adverse possession .can be acquired against it. 1 Cyc. 1112. In Burbank v. Fay, 65 N. Y. 57, it was held that an easement in the waters of the State canals cannot be obtained by prescription, and that no adverse use or occupancy, however long continued, will vest a title inconsistent with the public right or will impair or affect the rights of the State-The same principle has been held with respect to public highways. Driggs v. Phillips, 103 N. Y. 77; St. Vincent’s Orphan Asylum v. City of Troy, 76 id. 108. .1 think it also applies to the situation. here and, therefore, that the defendant has not obtained a prescriptive right to maintain its bridge where it is in such a way as to impair the navigation of the creek in question, nevertheless, I am inclined to *327believe that the court should not use the power of injunction as against this defendant in such a way as to impair the commercial importance to a considerable extent of the city of Albany, or to the serious detriment of the very important industrial interests that have, g’rown up on Rensselaer island and which must depend to a very great extent upon the railroad facilities, which at present are afforded only by the defendant at that locality. The defendant should be required to remove its bridge and its piles from the bed of the creek and to restore it to its original depth, so .that its navigable qualities at that point may be fully restored ; but this should be done on condition that the defendant be permitted to build a draw, lift or suspension bridge there, which will in no way interfere with the navigation of the creek and which will afford a necessary railway connection to the industries upon the island.

The defendant shows that for many years certain sewers of the city of Albany have been discharged in the waters of Island creek. There is no evidence as to what, if any, extent these have impaired the navigability of the stream. It does appear, however, that the trestle and its supports and the supports of the old trestle dammed up the stream where they existed and have interfered with the ebb and flow of the tide therein. If it had not been for this obstruction, it can readily be seen that the constant ebbing and flowing of the tide would have been entirely adequate to have disposed of any sewage that has been allowed to enter the stream, and that alone would not to any perceptible degree have impaired its navigability.

I think the plaintiff is entitled to a judgment against the defendant, with costs, in accordance with the prayer for relief in the complaint, except that the defendant should be permitted to erect such a bridge over the creek as has been indicated, and that six months’ time should be afforded to the defendant for the purpose of complying with the terms of judgment, with the privilege of applying to the court, upon due notice to the Attorney-General, for an. extension of such time, if it should prove to be inadequate.

Judgment for plaintiff.