The city of Buffalo is proceeding to take, under the provisions of chapter 142 of the Laws of 1909, a tract of land (certain parts being excepted) within the city and bordering on the eastern shore of Lake Erie, for the purposes of a public park. In the proceeding, the commissioners appointed to ascertain the compensation to be made to the persons interested in the lands to be taken have made a report, which, having been unanimously affirmed by the Appellate Division, presents *Page 333 the facts and questions which will be considered in this opinion. The commissioners determined not only the compensation to be awarded, but also the conflicting claims of title. The jurisdiction exercised by them in this particular was lawful for the reasons stated by the Appellate Division through the opinion of Mr. Justice SPRING.
The New York Central and Hudson River Railroad Company asserts that it is aggrieved by the determination of the commissioners, in that it denied to the company the ownership of any riparian rights in connection with or incident to its right of way where it is in contact with the lake, and any compensation for riparian rights. The right of way, or roadway, of the company is one hundred feet wide throughout the northerly and southerly length, of about three thousand feet, of the track. It was acquired in part by condemnation and in part through grants. Chapter 142 of the Laws of 1909 fixed as the western boundary line of the lands which might be acquired "the shore line of Lake Erie as shown by a" named map, which the commissioners designated the "Foster Map." Such shore line was that of 1816, and was many hundred feet west of the present shore line; hence the tract which the city is acquiring extends these many hundred feet west of the present shore line. About seventeen hundred feet of the west side of the right of way borders on the present shore line and the waters of the lake, because the lands which were east of the shore line of 1816 and west of the present shore line have been removed by erosion, that is, by the washing away of them by the waters, gradual and imperceptible as it proceeded. The harbor line in the lake in front of the tracts as established by the United States government, beyond which docks and piers cannot be erected, is many hundred feet west of the present shore line. There is, therefore, a considerable space between the right of way and the harbor or navigation line, subject to the lawful exercise of riparian rights. The statute authorized the taking *Page 334 of the tract "together with all the rights and appurtenances incident thereto and connected therewith, including all riparian rights and lands under water, if any, or any interest therein, owned by any person or corporation, whether or not such lands and premises or any part thereof are held or used for public purposes by any corporation having the power of eminent domain; excepting from the said lands and premises" the land "being used and occupied by the New York Central and Hudson River Railroad Company, the successor to the said Buffalo and Lockport Railroad Company." It provided: "Nothing herein contained shall affect any estate, right, title or interest which the people of the State of New York have in and to any of the lands and premises above described."
The commissioners rightly held that the statute enabled the city to take in the proceeding all the riparian rights incident to or connected with the tract; and held further, citing as controlling authorities decisions of this court, that the company did not stand in the position of an ordinary riparian owner and riparian rights were not connected with its right of way, for the reason that it holds it for railroad purposes only, and denied compensation on account thereof. Such determination of the commissioners conforms with the law of this state. It is true that riparian rights in navigable water pertain to the land abutting on the waters; they are lost to the owner whose land wholly disappears by erosion and are gained by him whose lands the waters reach. A general principle is that lands which are riparian attach to themselves riparian rights. (Mulry v.Norton, 100 N.Y. 424; Welles v. Bailey, 55 Conn. 292.) The railroad company cannot, however, invoke or reap the benefits of the application of this principle, because it holds the right of way and can use it only for the purposes expressed in its charter, those of the construction, maintenance and operation of the railroad. It took the lands, either by condemnation or grant, for those purposes only, and the limitations *Page 335 placed by the statute upon the use of the lands preclude the existence of riparian rights as incident to them. (N.Y.C. H.R.R.R. Co. v. Aldridge, 135 N.Y. 83; Rumsey v. N.Y. N.E.R.R. Co., 114 N.Y. 423; Saunders v. N.Y.C. H.R.R.R.Co., 144 N.Y. 75, 90.) The extent and nature of the riparian rights are to be determined by the law of this state, subject to the authority of Congress under the Constitution of the United States. (Town of Brookhaven v. Smith, 188 N.Y. 74;Philadelphia Co. v. Stimson, 223 U.S. 605, 632; WeemsSteamboat Co. v. People's Steamboat Co., 214 U.S. 345, 355.)
The counsel for the railroad company argues that the affirmance of such determination of the commissioners permits the company to assert that it owns riparian rights in connection with certain lands immediately east of the part of its right of way contiguous to the waters. Into the consideration of this claim additional facts enter. The company owns and for more than forty years has owned the lands immediately east of and contiguous to the southern one thousand feet or thereabouts of its right of way where it borders on the lake as stated. Those lands extend easterly from the right of way to the Erie canal, a distance of about two hundred and fifty feet. They were acquired by the company in part through condemnation and in part by grants. They have been and are used by the company for purposes of a locomotive house and railroad yards. They are a part of the lands excepted by the statute and, therefore, are not to be taken. The commissioners made no award of compensation to the company or any person for riparian rights, if any, connected with them. As they extend easterly to the Erie canal, there are no upland owners east of them to make claims to any riparian rights. The company claims it is aggrieved because the commissioners did not hold that riparian rights attached to those lands.
We do not deem it necessary to decide in this case *Page 336 whether or not the right of way which intervenes between the waters and those lands would bar the connecting of riparian rights with them. The principle of law and the authorities, already cited, which declare that the right of way strip does not absorb or attach to itself riparian rights, compel the same conclusion as to the lands used for a locomotive house and railroad yards. The relative statutes or the charter of the company do not intend or contemplate that riparian rights are necessary to the use, operation or purposes of railroad yards or round houses, or locomotive houses. It is conceded by all the counsel before us that the company or its predecessor company has been subject to the general railroad law first given form in chapter 140 of the Laws of 1850. The purpose of the incorporation, as stated in the act of 1850, was that of "constructing, maintaining and operating a railroad for public use in the conveyance of persons and property." (Section 1.) The act gave a company the power to acquire title to real estate, required for the purpose of constructing or operating the railroad, by condemnation (Section 13), and provided that the company should be entitled to use the real estate for the purposes of its incorporation during the continuance of its corporate existence and that it should be deemed to be acquired for public use. (Section 18.) The commissioners of the land office were given power to grant to any company formed under the act any land belonging to the people of the state which may be required for the purposes of the road on such terms as may be agreed on by them, and empowered the company to acquire title thereto by appraisal as in the case of lands owned by individuals (Section 25), and, also, "to take and hold such voluntary grants of real estate and other property as shall be made to it, to aid in the construction, maintenance and accommodation of its railroad; but the real estate received by voluntary grant shall be held and used for the purposes of such grant only. 3. To purchase, hold *Page 337 and use all such real estate and other property as may be necessary for the construction and maintenance of its railroad, and the stations and other accommodations necessary to accomplish the objects of its incorporation; * * * to erect and maintain all necessary and convenient buildings, stations, fixtures and machinery for the accommodation and use of their passengers, freights and business." (Section 28.) While subsequent enactments have extended the powers granted by the original act of 1850, they have not relaxed the restrictions or limitations imposed by it. The company may acquire real estate by grants or by the exercise of the right of eminent domain, only for those purposes reasonably incident to the proper construction, maintenance and operation of the railroad as a carrier of goods and passengers. The extent of the estate acquired, whether it be a permanent easement for the uses and purposes of the railroad, with exclusive possession and control in the company during its corporate existence, or a full fee title, is irrelevant in a consideration of the capacity and uses given or permitted to it as the owner of that estate, by the charter, that is, by the pertinent statute law and the certificate of incorporation. The nature of the estate acquired does not extend the corporate purposes or powers as defined by the charter or shrink the qualifications or restrictions it imposes as to them. (N.Y.C. H.R.R.R. Co. v. Aldridge, 135 N.Y. 83, 95.)
Nor does any valid distinction, at any point in our present consideration, arise from the different uses to which the lands are subjected by the company. No part of the real estate properly held by it is free from or unaffected by the restrictions, subject to which the whole of it was acquired. They equally and impartially apply to the whole of it and constrict its uses. The law does not invest the roadway with any characteristic or quality by which it is acquired and held exclusively for railroad purposes, while the yards and the lands upon which are *Page 338 the locomotive houses and freight and passenger stations are not. Freight, storage and switch yards, lands for freight and passenger stations and round houses are as essential to the fulfillment of the chartered purposes of the company as is the roadway. The power to take or receive real estate for one use or another is a single and the same power; the nature and extent of the interest of the company therein is not affected by the one use or another and each use is in aid of the operation of the railroad as a public highway. (Matter of N.Y.C. H.R.R.R. Co.,77 N.Y. 248; Rensselaer and Saratoga R.R. Co. v. Davis,43 N.Y. 137; Matter of N.Y. H.R.R. Co. v. Kip, 46 N.Y. 546.)
The fact that these lands extend from the roadway of the company to the canal and hence there are no other lands to which riparian rights can attach does not tend to establish that riparian rights are appurtenant to them. Riparian rights in navigable waters held by the state as a trustee for the use of the public in common, are the various privileges in the waters, which are incident, under the law of the state, to the ownership of the shore. In such ownership they have their origin and, generally speaking, they are annexed exclusively to land which borders upon the waters. They are valuable property rights which may be severed from the riparian land by grant, condemnation, relinquishment or prescription. (Matter of N.Y.C. H.R.R.R.Co., 77 N.Y. 248; Town of Brookhaven v. Smith, 188 N.Y. 74;Barnes v. Midland R.R. Terminal Co., 193 N.Y. 378; Sage v.Mayor, etc., of N.Y., 154 N.Y. 61.) The result worked as to the lands of the railroad company, while under its ownership, is, that the riparian rights, which the bordering waters would have attached to the lands were they privately owned, are severed from them, because they are not necessary to or required by the uses or purposes for which the company holds them, and remain in the state as trustee. We hold that the doctrine of theAldridge *Page 339 Case and Rumsey Case (supra) precludes the railway company from maintaining that it owns riparian rights in connection with its lands involved in this proceeding.
We have considered the other points presented by the appellant railroad company and think they present no error on the part of the commissioners, nor question requiring discussion in this opinion.
The appellants Bowen and others were the owners of certain of the lands which were wholly removed by erosion. They assert that they own the right to reclaim their lands; that the right is a property right and is to be taken through the proceeding. The commissioners held that their title to the lands was lost to them and became vested in the state.
A littoral owner is at the risk of losing his land to the state, in part or entirely, through erosion. He likewise is entitled to any addition to his land through accretion, that is, by the growth, gradual and imperceptible as it progresses, of his land into the situs of the waters, whether the accretion results from alluvial deposits or formations, or reliction, that is, the recession of the waters. He is bound to accept the gradual and imperceptible alteration of the shore or high-water lines as an alteration in the boundary of his land. His property line expands as his land gradually and imperceptibly encroaches upon the water and contracts as the water gradually and imperceptibly encroaches upon his land. If the change in the water line takes place suddenly and visibly, that is, through avulsion, the ownership remains according to the original or former boundaries. The title to the waters replacing the land lost through erosion vests in the state in its sovereign capacity for the benefit of the people. (Mulry v. Norton, 100 N.Y. 424; Saunders v. N.Y.C. H.R.R.R. Co., 144 N.Y. 75; Sage v. Mayor, etc., of N.Y.,154 N.Y. 61.)
The waters of Lake Erie have supplanted the entire of the lands of the appellants, and the title to them *Page 340 and the lands underneath is in the state. (Langdon v. Mayor,etc., of N.Y., 93 N.Y. 129, 155.) The appellants have no interest, right or title in them. The law of this state does not recognize or adopt the doctrine that the owner of littoral land, which has disappeared through erosion, may intrude upon and exclusively appropriate its situs either through filling in or an embankment keeping the submerging waters from it. While the land or a part of it exists the littoral owner may construct in the adjoining waters of the state and upon the land under them, a pier, reasonable and proper, for the purpose of access from the land to the navigation line. This right is subordinate to the exercise of the power of the legislature, or of the Congress for the improvement of navigation, or for the regulation of commerce. (Town of Brookhaven v. Smith 188 N.Y. 74.) He has not, however, the right of going into the water of the state or upon the lands underneath for the purpose of reclaiming submerged lands. (People ex rel. Blakslee v. Commissioners of the LandOffice, 135 N.Y. 447; Saunders v. N.Y.C. H.R.R.R. Co.,144 N.Y. 75; Coxe v. State of N.Y., 144 N.Y. 396.) The conclusion of the commissioners was right.
The order appealed from should be affirmed, with costs.
CULLEN, Ch. J. (in memorandum), GRAY and HISCOCK, JJ., concur with WERNER, J.; HAIGHT and VANN, JJ., concur with COLLIN, J.
Ordered accordingly. *Page 341