A special franchise is defined as the franchise, right or permission to construct, maintain or operate a railroad above a public place. The Niagara river is such a public place. The relator maintains and operates a railroad above it.
Does it do so by reason of authority granted by the *Page 105 State where without such authority such action would be illegal? (People ex rel. N.Y.C. H.R.R.R. Co. v. Priest, 206 N.Y. 274. ) Does it do so by public favor? (People ex rel. N.Y.C.R.R.Co. v. Woodbury, 203 N.Y. 167.) If it does not, there is no special franchise. (People ex rel. Hudson M.R.R. v. TaxComrs., 203 N.Y. 119; People ex rel. Long Island R.R. v. TaxComrs., 148 App. Div. 751; affd., on opinion below, 207 N.Y. 683. )
Chapter 104 of the Laws of 1846 incorporated the Niagara Falls International Bridge Company, authorized it to purchase or condemn necessary lands on this side of the boundary line and to build a toll bridge across the river for pedestrians and vehicles. A similar act was passed in Canada and the bridge has been built and operated for many years. Under the present definition of the statute this did not confer a special franchise. It is not the right, the authority or the permission specified in section 2 of the Tax Law.
By chapter 622 of the Laws of 1853, however, the corporation was empowered to contract with a railroad corporation with reference to terms upon which the latter might operate trains over the bridge. This statute impliedly authorized the bridge company to so construct the bridge as to be suitable for that purpose. In pursuance of this act the corporation built an upper deck to accommodate engines and trains.
I do not think this act conferred a special franchise upon the bridge company. The words of the statute are permission to "construct, maintain or operate" railroads over a public place. Certainly the corporation was never authorized to operate a railroad itself across the river. Probably it might lay rails on the structure. That may be implied from the fact that it was to build a railroad bridge. But I do not think the mere placing of rails thereon comes fairly within the meaning of the phrase "construct * * * railroads." It never, therefore, *Page 106 itself obtained a special franchise, but it might grant the right to maintain and operate railroads across the bridge to others. It did so in October, 1853. It then leased to the Great Western Company of Canada the upper deck for the passage of trains and locomotives. The relator stands in the place of the original lessee.
As an original proposition the relator might not have constructed and operated a railroad bridge across the Niagara river without permission from the State. Had such permission been granted to it there would be a special franchise — permission to construct and operate a railroad above a public place. (Peopleex rel. H.R. P.C.R.R. Co. v. Tax Comrs., 215 N.Y. 507.) It seems to me that this is precisely what the act of 1853 did by implication. It said, "you may lease to some railroad and give it permission to operate its trains over your bridge. The lease will evidence our consent that it may do so." Consent of the State was required. It need not be express. It is no defense where a railroad crosses a highway that consent has never in fact been given.
I have said consent of the State is required. It is even more requisite here than in the ordinary case where the State is practically a trustee for the public. Here its proprietary rights are also involved. If not given, not only does the structure constitute a continuing trespass, but every person crossing the river upon it would be a trespasser.
It seems to me that unless the State has granted permission to the relator to maintain and operate a railroad over a public place the only alternative is to hold that it has granted such permission to the bridge company, and that the latter is exercising such rights through its lessee as agent. Such a holding would not accord with the facts. Some one has permission from the State. Who? I think the relator.
That its right may be terminated for non-payment of rent, that the method of its operation is controlled by *Page 107 the lease, both facts seem to me immaterial. Meanwhile it does operate a railroad over a public place by consent.
I think that the judgment of the court below was right and should be affirmed.
CARDOZO, Ch. J., POUND and KELLOGG, JJ., concur with LEHMAN, J.; CRANE and ANDREWS, JJ., dissent in opinions, in which O'BRIEN, J., concurs.
Ordered accordingly.