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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 61 The 6th section of plaintiff's charter, which prohibited the erection of a bridge within a mile of the plaintiff's bridge, having been repealed, the plaintiff stands in precisely the same position in reference to the defendants' bridge, that they would have done if no such prohibition had ever been contained in their charter. The right of the legislature to thus alter and modify the plaintiff's charter cannot be questioned.
Since the case of The Charles River Bridge v. The WarrenBridge (11 Peters, 420), it has been understood to *Page 62 be the law, that it is competent for the legislature, after granting a franchise to one person or corporation, which affects the rights of the public, to grant a similar franchise to another person or corporation, the use of which shall impair or even destroy the value of the first franchise, although the right so to do may not be reserved in the first grant; unless the right so to do is expressly prohibited by the first grant. (Mohawk BridgeCompany v. Utica S.R.R. Company, 6 Paige, 554; Oswego FallsBridge Company v. Fisk, 1 Barb. Ch. R. 547.)
These propositions dispose of the principal questions in this case. But it is urged that the Mohawk river is a public stream, and that the defendants have no right to bridge it without authority of the legislature.
On the facts found in this case, the Mohawk river is not navigable, except to a very limited extent. Its capability for navigation has been very materially lessened within the last thirty years; hence the rules of law which applied to it then do not apply to it now.
But assuming that it is a public highway, and that the bridge is an obstruction to navigation, and therefore a public nuisance, yet no one has the right to abate it, or sustain an action for damages occasioned by the erection, unless he has himself sustained some damages not sustained by the rest of the community. (Pierce v. Dart, 7 Cowen, 609; Lansing v.Smith, 8 Cowen, 146; 9 Wend. 315; 6 Hill, 292; 3 B. C. 556; 4 M. S. 101; 19 John. 223; 37 Barb. 301.)
If the plaintiff's business was navigating the river, or if the new bridge endangered the safety of the plaintiff's bridge, then a right of action to restrain the erection, or for damages might be maintained, depending on the nature of the injury done or apprehended.
But because a bridge over a navigable stream may be a nuisance to those navigating it, it does not follow that it is a nuisance as to others who do not navigate it. *Page 63
The plaintiff having no exclusive grant of the right to maintain their bridge and take toll, it follows that every other bridge built over the stream which does not impede navigation, is lawfully erected and is not a public nuisance, and no action for damages will lie for its erection. If it does impede or impair navigation, it is a nuisance as to those navigating, but not to any others. The rights of the plaintiff are not, in contemplation of the law, injured by the new bridge, and hence they are not entitled to either an injunction or damages.
But it is said the defendants could not legally erect their bridge without authority from the legislature, and hence any person injured may resist its erection, or recover damages therefor. There are three cases in which authority from the legislature is necessary to erect a bridge over a stream. One is when the stream is navigable; 2d, when the state owns the bed of the stream; and 3d, when the right to take toll is desired.
It was decided by the court of errors in The Canal Appraisers v. The People (17 Wend. 571), that the bed of the Mohawk belonged to the state, and of course the defendants have no right to use the property of the state for their own benefit, without its consent. But I do not understand what right the plaintiffs have to complain of this appropriation of the bed of the stream, while the state officers make no objection to it.
I am free to say that I would be glad to see the old common law restored, which denied to the legislature the power to take away or impair a franchise granted by it; but the law is settled the other way, and we must conform to it. If the common law principle was restored, however, it would be no protection to owners of franchises, as under the power reserved by the legislature to amend or repeal its acts, the same result can be attained.
The judgment must be affirmed, with costs.
All the judges concurring, judgment affirmed. *Page 64