Lehigh Valley Railroad v. Canal Board

Kruse, J.

(dissenting):

The real question here is whether the State or the plaintiff railroad company shall bear the expense of rebuilding the railroad bridge over the Seneca river to meet the requirements of the barge canal improvement. We are all agreed, as I understand it, that the State could require the railroad company to bear that burden, but divided upon the question as to whether the State, by appropriate legislation, has relieved the plaintiff therefrom and itself assumed that expense.

The State never parted with its title to the bed of the stream and it now is the owner thereof, and the trial court so decided. The State gavp to the plaintiff’s predecessor in title permission to bridge and carry its railroad over the river. The permission was'given without compensation to the State, and the trial court specifically' found that the plaintiff or its predecessors in title acquired only a revocable license to cross the Seneca river at said point, or to place its piers or abutments in the waters thereof. ,

I cannot bring myself to the conclusion that the Legislature has assumed for the State the burden which legally and equitably belongs to the railroad company, even if the Legislature could do that and keep within the bounds of the Constitution. If the Legislature has the power to assume that burden for the State that intention should be expressed in clear and explicit language, which, as I think, has not been done in any of the acts of the Legislature referred to in .the prevailing opinion. A logical result of such a policy upon the part of the State is to make the rights of the railroad company, having a mere revocable license, paramount to those of the State in its own property. I think such a rule ought not to prevail, , and in the ■ absence of any express declaration by the Legislature to that effect that we should not so hold. If the railroad company *166desires to continue to cross this stream, the title to the bed of which is in the State, it should accommodate itself to the reasonable requirements of the State in improving the river for public use.

Spring, J., concurred.

Judgment affirmed, with costs.