[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 147 The defendant did not own, nor did it sink the boat. It neither caused, nor in any wise contributed towards the creation of the nuisance, therefore, Brayton v. City of Fall River (113 Mass. 218); Haskell v. City of New *Page 150 Bedford (108 id. 216); Boston R. Mills v. City of Cambridge (117 id. 896); Franklin Wharf Co. v. City of Portland (67 Maine, 46); and Sleight v. City of Kingston (11 Hun, 594), cited by the appellant, are not in point.
The liability if any, must be founded on a duty to keep the navigable waters of the Hudson within the city limits free from obstruction.
The obligation to keep streets and highways in a safe condition for public use, cannot be invoked against the defendant here for while the river is a highway, for the passage of vessels, that portion of it which happens to be embraced within the boundaries of a city is not one of its highways, so as to burden it with the duty of removing obstructions and keeping it safe for navigation. (Seaman v. Mayor, etc., 80 N.Y. 239.)
The river being a highway for state, interstate, and foreign commerce is subject to regulation by congress, but the state because of its great interest in the continuing availability of navigable waters within its borders for vessels, may properly assume to remove such obstacles as may from time to time prove a menace to successful navigation, provided always that it does not impair freedom of navigation under the acts of congress, or interfere with any system of improvement provided by the general government.
But while the general government, together with the aid of the state government, may and generally does provide for the removal of obstacles, which are a hindrance to navigation, and the doing of other necessary things for the encouragement and protection of commerce; and performance in that respect is regarded as a duty, still it is not one that the individual may enforce. Judge AGNEW in the Winpenny case said "it is not a duty of perfect obligation, but one of voluntary assumption or imperfect obligation; in as much as it cannot be enforced against the will of the state."
The state may not only undertake at its expense to remove obstructions in, and generally improve the condition of navigable waters, but in its discretion it may place the burden of performance on a city or county more immediately and beneficially *Page 151 interested than other portions of the state. (County of Mobile v. Kimball, 102 U.S. 691.)
It seems to be clear, however, that in order to charge a municipality with the duty and burden of improvements primarily existing in the general and state governments, which they can perform or not as the wisdom of congress or the legislature may suggest, a determination which could not be directed or interfered with by the courts at the instance of a complaining party; that it must appear from the act alleged to contain the requirements, that it was the intention of the legislature to place upon the municipality the burden of doing all that the state should have done, and more than it could be required to do.
As we read the decision in the Winpenny case cited by the appellant, it is in no wise opposed to the views so far expressed. In that case the statute provided that the city should "keep the navigable waters within said city open and free from obstructions," and the court held that the duty being express the consequences of a failure to perform rested on the city. (Winpenny v. City of Philadelphia, 65 Pa. St. 135-140.)
If the statutes of this state laid on the city of Albany a command in the same terms as to the navigable waters within its boundaries, we should not hesitate to follow the decision in a case founded on neglect of performance resulting in injury. But quite another question would be presented if the attempt were to recover (as here in some part) for expenses incurred by the plaintiff in doing that which he alleges the city should have done.
The plaintiff decided that the city owed to the public in general, and himself in particular, the duty of removing the sunken boat, and he assumed to perform the obligation which he claimed belonged to the city and should have been exercised through its officers, and now asserts its liability to respond to him for the expense incurred.
But we need not consider this question, as we have determined to place our decision on other grounds.
It is not contended that the state expressly charged the city *Page 152 of Albany with the responsibility of keeping the river free from obstructions, but that it conferred on the common council power of local legislation, to be exercised by the establishment of general rules and regulations under which such purpose could be accomplished, and having accepted charter powers from the state, of which these formed a part, the city became liable in consideration of the grant for the due exercise of the powers conferred and a proper performance of the duties imposed.
Reference is made to section 19, chapter 153, Laws of 1801, which provides "that it shall be lawful for the said mayor and commonalty to make by-laws and inflict reasonable penalties, to enforce the same for regulating and keeping in repair the docks and slips within the said city, and to prevent the same, and the river opposite thereto, from being in any manner obstructed." Also to Laws of 1826, chapter 185, section 15, which declares "that the said common council are hereby constituted and declared commissioners of highways in and for the said city, and shall and may from time to time pass ordinances * * * to abate or remove any nuisances in any street or wharf, * * * to regulate, keep in repair, and alter the streets, highways, bridges, wharves and slips, * * * to prevent all obstructions in the river near or opposite to such wharves, docks or slips."
It may be observed in this connection that the charter of Albany was amended by chapter 298, Laws of 1883, and the power to enact ordinances on the subjects now being considered was limited "to the construction, repair, care and use of the markets, docks, wharves, piers, slips and squares of the city," no mention being made of "the river opposite thereto," as in the acts of 1801-1826, and it is insisted that those acts in respect to such provision are repealed by implication.
Assuming, but not deciding, that such contention is not well founded, we come to the fact that the common council did provide by ordinance that if a vessel be sunk at any dock, wharf or slip, or anywhere in the Hudson river opposite the city of Albany, and within jurisdiction thereof, that a notice *Page 153 should be given to the owner or proprietor to remove it, and in the event of his failure to do so, "then it shall be lawful for the street commissioner to take possession of such craft, boat or flat, and to remove the same, and at public auction to sell such vessel, or so much of the loading thereof as will pay the expenses of such removal."
For failure to enforce this ordinance relating to matters which the city was not commanded by the legislature to do or perform, and in respect to which, in the absence of command, it owed no duty, no liability exists.
1. Because there being no liability in respect to the subject-matter in question, the statute exempts it from liability for the mere non-enforcement of the ordinances.
Section 44 of title 3 of its charter (Chap. 298, Laws 1883) provides: "Nothing contained in this act shall be so construed as to render the city of Albany, or any of its officers, liable in damages or otherwise to any person, or persons or corporations, for any omission to pass any ordinance, regulation or resolution pursuant to the provisions hereof, or for a failure to enforcethe same." In the absence of a statutory provision this rule has been enforced by the courts. (Stilwell v. Mayor, etc., 17 J. S. 360; 96 N.Y. 649; Hines v. City of Charlotte, 40 N.W. Rep. 335; Wheeler v. City of Plymouth, 18 N.E. Rep. 532; 2 Dillon M.C. § 950.)
2. So much of the ordinance as provides that the street commissioner might sell the vessel, or the loading thereof to pay the expenses of removal, was invalid, because the ordinance created a forfeiture in the face of the statute prescribing that the city should provide for the enforcement of ordinances by fines and penalties in an amount not exceeding that named in the act. (Hart v. Mayor of Albany, 9 Wend. 570-589.)
The judgment should be affirmed.
All concur, except LANDON, J., not sitting.
Judgment affirmed. *Page 154