The exceedingly able and comprehensive report of the commissioners in this proceeding has served very materially to simplify the complicated questions which have been presented to the courts for decision. This fact was emphasized in the opinion of Mr. Justice SPRING who wrote for the Appellate Division upon the appeal to that court, and we concur in that opinion so far as it goes, but deem it necessary to discuss two additional questions which affect, respectively, the appellants New York Central and Hudson River Railroad Company and Bowen et al.
The proceeding was instituted by the city of Buffalo, under chapter 142 of the Laws of 1909, for the purpose of acquiring, for park purposes, certain lands in that city embraced in the territory bounded on the west by Lake Erie; on the north by Jersey street; on the east by the Erie canal; and on the south by Georgia street. All of this tract was originally upland, as is shown by a map made in 1816. Since that time there has been a gradual and constant encroachment of Lake Erie until the greater portion of the land is now under water. The right of way of the appellant, the New York Central and Hudson River Railroad Company, acquired from its predecessor, the Buffalo and Lockport Railroad Company, runs through *Page 324 this tract from south to north. When this right of way was established it was upon upland which was some distance easterly from the shore line of the lake, but when this proceeding was instituted this upland had been eroded to such an extent that the water of the lake washed the westerly line of the railroad right of way from Georgia street on the south to a point a short distance south of Maryland street, as shown on the map attached to the record, with the exception of a small territory just north of Georgia street, where the shore line of the lake is a short distance westerly from the railroad right of way.
From the lands embraced within the general boundaries above referred to there are excepted three classes of lands which are not sought to be acquired by the city in this proceeding: 1st. All lands belonging to the state. 2nd. The lands comprising the railroad right of way. 3rd. The lands owned by the railroad company lying outside of its right of way, just north of Georgia street and between the right of way on the west and the Erie canal on the east, where the railroad company is the only upland owner.
The appellants Bowen and others, who have the record title to parcels 64 and 65 (as marked on the commissioners' map), which are to the west of the railroad company's right of way and its adjacent uplands, claim to be the present owners of said parcels and insist that they are entitled to compensation therefor. These two parcels were formerly upland. When this proceeding was commenced they were entirely submerged and surrounded by water, as they had been for many years. The commissioners decided that this flooding of the land was the result of erosion. That is a finding of fact which cannot be reviewed upon this appeal. Counsel for the appellants Bowen et al. concedes that if the submergence of these two parcels was caused by erosion, which means the gradual and imperceptible wearing away of the land by the natural action of the elements, the ownership is now in the state *Page 325 by virtue of its sovereign title to all land below high-water mark in the navigable waters of the state. It is urged, however, that these appellants, Bowen et al., have still a right of reclamation for which they are entitled to compensation. The commissioners decided against this contention and we concur in their conclusion. The law applicable to this branch of the proceeding is that "when portions of the mainland have been gradually encroached upon by the ocean so that navigable channels have been extended thereover, the people, by virtue of their sovereignty over public highways, undoubtedly succeed to the control of such channels and the ownership of the land under them in case of its permanent acquisition by the sea." (Mulry v. Norton, 100 N.Y. 424,434.) This is also the rule as applied to the waters of the great lakes and the navigable streams of the state. The loss of lands by the permanent encroachment of the waters is one of the hazards incident to littoral or riparian ownership. Such changes are due to natural causes to which the courts have from time immemorial applied rules of law founded upon considerations of natural justice and public necessity. When land bordering a body of water is increased by accretion, that is to say, by such a slow and gradual deposit of particles that its progress cannot be always measured even though its results may be discerned from time to time, the new land thus formed belongs to the owner of the upland to which it attaches. By the same reason the rule is that when the sea, lake or navigable stream gradually and imperceptibly encroaches upon the land, the loss falls upon the owner, and the land thus lost by erosion returns to the ownership of the state. This is not the rule where the loss of the land occurs by avulsion, defined as the sudden or violent action of the elements, the effect and extent of which is perceptible while it is in progress. In such cases the boundaries do not change. (Jefferis v. East Omaha Land Co., 134 U.S. 178; Nebraska v.Iowa, 143 id. 359; *Page 326 Philadelphia Co. v. Stimson, 223 U.S. 605; Mulry v.Norton, 100 N.Y. 424; Matter of Hull Silby Railway, 5 Mees. W. 327.)
The land of the appellants Bowen et al. has been lost by erosion. For many years it has been completely submerged. Under the rule applicable to loss of land by erosion the state is now the owner thereof. During the years in which this change was in progress the former owners made no attempt to stay the encroachment of the water or to reclaim the lost land. Meanwhile the railroad company has become the owner of the upland with such riparian rights as attach to it. It would result in intolerable confusion and public inconvenience to hold that in such circumstances the former owners have a perpetual right of reclamation. If that were the law there would be an end to riparian improvements, for no riparian owner could ever be certain of his tenure or title. No upland owner could ever be sure of his access to the water or free from doubt whether such access were a permanent legal right or a mere temporary privilege enjoyed by sufferance. It is obviously a rule of necessity and justice that the loss of land by erosion carries with it all incidents of ownership. (Welles v. Bailey, 55 Conn. 292;Nixon v. Walter, 41 N.J. Eq. 103.)
In the discussion of this subject we have not overlooked certain expressions of Chief Judge RUGER in his opinion inMulry v. Norton (supra) which are relied upon by counsel for the appellants Bowen et al. in the proceeding at bar. In that opinion there are quite a number of quotations from learned text writers and many original observations of a general character relating to littoral and riparian rights, loss of lands by avulsion or erosion, and acquests of land by recession of water, alluvion or accretion, which were doubtless used to illustrate the rule applicable to the specific facts of that case. This becomes evident when we consider the breadth of the discussion and the limited scope of the decision. In that *Page 327 case the controversy was between contiguous upland owners over the title to beach lands. Mulry, the plaintiff, claimed title under a chain of conveyances which by definite description embraced the locus in quo. The defendants, through their grantor, claimed to have acquired the land in dispute by alluvion or accretion. The changes in the disputed territory, all of which was within the boundaries of plaintiff's deed, were wrought by the "sudden and violent operation of the tides," which caused the removal of "large and perceptible sections of beach" from one place to another, and during these changes the plaintiff was the undisputed owner of the adjacent uplands. In these circumstances it was held that the plaintiff had not lost his title to lands which had been temporarily affected by the sudden and violent action of the sea. It was with reference to these facts that Chief Judge RUGER wrote: "It is not, however, every disappearance of land by erosion or submergence that destroys the title of the true owner, or enables another to acquire it, for the erosion must be accompanied by a transportation of the land beyond the owner's boundary to effect that result, or the submergence followed by such a lapse of time as will preclude the identity of the property from being established upon its reliction. land lost by submergence may be regained by reliction, and its disappearance by erosion may be returned by accretion, upon which the ownership temporarily lost will be regained. * * * It is equally true, however, that when the water disappears from the land, either by its gradual retirement therefrom or the elevation of the land by avulsion or accretion, or even the exclusion of the water by artificial means, its proprietorship returns to the original riparian owners." (p. 434.) In the case at bar, as we have seen, the lands of the appellants Bowen et al. have been completely submerged by imperceptible erosion, and in this controlling circumstance we find the radical difference between the two cases. In the Mulry case the *Page 328 land which had been temporarily lost by the violent and perceptible impact of the elements was reformed within the boundaries of the plaintiff's title. In the case at bar the lands of the appellants Bowen et al. have completely disappeared by imperceptible erosion under conditions which support no reasonable hope or expectation that they can ever be reclaimed. They are covered and surrounded by water in such a way that there is no prospect of their restoration by any process, either natural or artificial. In the light of these considerations, we think it clear that there is nothing in the opinion in theMulry case which supports the contention of the appellants Bowen et al. in the proceeding at bar.
Part of the land under water, which lies to the west of this upland owned by the railroad company, has been granted by the legislature to individuals (L. 1887, ch. 438; L. 1894, ch. 343), but without prejudice to the riparian rights, if any, of the railroad company. These lands have been condemned in this proceeding and awards have been made therefor. The title to other portions of the land under water is in the state, and these are not affected by this proceeding. The upland owned by the railroad company outside of its right of way was acquired in part by condemnation and in part by conveyances from the owners. It is used for locomotive house, yards, approaches, switches and storage tracks, and these are, of course, all proper railroad purposes within the scope of the General Railroad Law. The railroad company claims to be a riparian owner in two separate and distinct capacities.
1. Counsel for the railroad company contends that where its right of way borders upon the waters of the lake it is entitled to the same riparian rights as any upland owner would be if the right of way were not there. The commissioners have decided against this contention and their decision, which was unanimously affirmed by the Appellate Division, is fully sustained by *Page 329 the decisions of this court. (Rumsey v. N.Y. N.E.R.R. Co.,114 N.Y. 423; New York Central Hudson R.R.R. Co. v.Aldridge, 135 id. 83.) The established law in this regard is that when a railroad company acquires a right of way which intervenes between a navigable body of water and the adjacent upland, the owner of the upland retains all the riparian rights which he had before the railroad was built. In such a case the railroad right of way, whether acquired by proceedings ininvitum or by deed in fee, is held only for the specific purposes served by the construction and operation of railroad tracks, and does not include the riparian rights which are incident to the ownership of uplands as that term is generally understood.
2. The railroad company further asserts that it is a riparian owner as to the upland which it owns adjacent to its right of way, and which is used, as already stated, for locomotive house, switching, storage and the like. This upland has not been condemned in this proceeding, but the report of the commissioners contains expressions intimating that as to this upland no riparian rights exist. In this view we think the commissioners erred. The present record does not definitely disclose the character of the railroad company's title to these uplands; it simply appears that they were acquired by the railroad company, in part by condemnation and in part by purchase. Even if the question as to the railroad company's riparian rights were now before us for adjudication, it would be impossible to define their exact nature and extent, since that depends upon proofs which are not in the record. With this brief statement we might properly pass this question without further present consideration were it not for the challenge to the railroad company's asserted right to hold any lands in fee or by any other title that might invest it with riparian rights. Lest our silence on that subject might be construed as acquiescence in the claim that the railroad company can have no *Page 330 riparian rights in its uplands, we will briefly discuss a few general propositions bearing upon the subject without attempting to decide in advance just what disposition shall be made of the railroad company's claims when the courts may be required to pass upon them.
It is well settled that corporations, limited in duration, may purchase and hold the fee of land, and sell it whenever it is no longer necessary or convenient to keep it. (Nicoll v. N.Y. E.R.R. Co., 12 N.Y. 121, 129.) In the case just cited we find the general rule very succinctly stated in the language of Chancellor KENT: "Corporations have a fee simple for the purpose of alienation, but they have only a determinable fee, for the purpose of enjoyment. On the dissolution of the corporation, the reverter is to the original grantor or his heirs; but the grantor will be excluded by the alienation in fee, and in that way the corporation may defeat the possibility of a reverter." (2 Kent, 282.) That is the rule which has been applied in this state. (People Health Comrs. of N.Y. v. Mauran, 5 Denio, 389-401;Health v. Barmore, 50 N.Y. 302; Yates v. Van De Bogert,56 N.Y. 526, 530.) We can find nothing in the Railroad Law which contravenes or changes this rule. Railroad corporations are expressly authorized to acquire "real property, or any right, interest or easement therein," either by purchase or condemnation, and the only limitation upon this right is that every such property right, interest or easement must be taken and used for the purpose for which a railroad corporation is organized, or for some purpose stated in the Railroad Law. (Railroad Law, § 1.) It is common knowledge that railroad corporations expend large sums of money for station houses, freight depots and other buildings which are all used for railroad purposes, but in the use of which there may be fluctuations and changes which are not permissible as to a railroad right of way. A passenger station or a freight depot may be discontinued or moved for reasons of business convenience *Page 331 or public necessity. There can surely be no doubt that in such a case a railroad company, having a title in fee to such lands which it no longer needs, may sell and convey precisely as any individual may do. If such lands happen to be so situated that a private owner would be entitled to riparian rights, what becomes of these rights while the lands are held and owned in fee by a railroad corporation? Riparian rights do not constitute an independent estate. They are an incident to the estate in uplands abutting upon navigable waters, and when a railroad company acquires the unrestricted fee in such uplands it would seem necessarily to follow that the riparian rights follow the title. The riparian rights in such a case may be restricted by the limitations of the railroad company's charter or the statutes under which it is incorporated, but that merely relates to the extent of the use and not to the existence or nature of the right.
But even if the railroad company has not a title in fee to any of the uplands, it has at least a permanent easement, coeval with its corporate existence, under which it is entitled to exclusive use, possession and control. (Roby v. N.Y.C. H.R.R.R. Co.,142 N.Y. 176; Hudson Manhattan R.R. Co. v. Wendel, 193 id. 166.) Since riparian rights pertain to the use of uplands in connection with water upon which it abuts, the question naturally arises what becomes of these riparian rights where a railroad company has the absolute right to the use of the upland during the term of its corporate existence? The question would seem to have been answered in the recent case of Naylor v. N.Y.C. H.R.R.R. Co. (196 N.Y. 544), where this court affirmed a judgment in favor of the defendant, upholding its claim to riparian rights as against an upper upland owner. There the land lay outside of the railroad right of way and was used for a freight yard. Here the land is used for the same and similar purposes. It is possible, in view of the fact that the only opinion in the Naylor case was written in the Appellate *Page 332 Division upon demurrer to the complaint and that the affirmance in this court was without opinion, that this particular phase of the question of a railroad company's position in respect of riparian rights may be considered as not yet definitely and finally settled, and we, therefore, leave it without further discussion until it is directly presented.
The report of the commissioners and the orders of the courts below should be modified by reciting that they are without prejudice to the railroad company's riparian rights, such as they may be determined to be when the question arises, in the uplands outside of the railroad right of way not acquired by the city in this proceeding, and as thus modified affirmed, with costs to the appellant railroad company.