All the members of this court agree that the proofs establish the fact that the Croton river is a navigable stream, from the Hudson *138river, to, along and through the plaintiffs’ premises. We also agree that the defendant’s railroad bridge is an unlawful obstruction of the Croton river and that it was erected and is maintained in violation of section 15 of chapter 216 of the Laws of 1846, by which defendant’s predecessor was incorporated, which provided as follows: “ The said corporation is hereby authorized to build or erect a bridge over the Spuytenduyvel creek and other navigable streams or inlets, for the passage of the said road or ways, from or to the city of New York. Such bridges shall be substantially constructed, and shall contain a draw of sufficient width to admit the passage of vessels adapted to the navigation of said river, streams or inlet, with standing masts, and shall be so attended as not to obstruct, delay or hinder, the progress of any vessel navigating said river. They are also required to construct such bridges as may be necessary to provide for the free passage of such vessels and boats as heretofore have or now can pass into and from the same, the bays that may be crossed by said railroad; and if any wharf or dock shall be cut off by the said railroad, the said company shall extend or so improve the same as to restore it to its former usefulness, so far as it may be practicable to do so. And the owner or owners thereof are hereby authorized to occupy the river front, outside of said railroad, for the erection and use of wharves or docks.”
We are also in accord on the proposition that defendant has not acquired a right to maintain its bridge by prescription, and that plaintiffs have not, by laches, lost their rights to the use of Croton river for navigation from their property to and from the Hudson river. The majority opinion concedes that the defendant’s bridge, which obstructs navigation on the Croton river, is a public nuisance and that plaintiffs have sustained some damage and have a right to maintain this action to abate said public “nuisance. The only difference in the views of the members of the court is as to the form of relief that shall be given the plaintiffs. In my opinion, plaintiffs are entitled to more than nominal damages, and, in view of the facts, as to which we all agree, that they are entitled to a mandatory injunction for the removal by defendant of its bridge and the abatement of the nuisance, unless defendant shall pay to the plaintiffs their damage, which is the difference between the value of their property with and without the bridge. Plaintiffs’ witnesses testified that plaintiffs’ damage is $450,000, and there is no testimony to the contrary, except upon the theory that Croton river is non-navigable and that the defendant’s bridge is not an obstruction to navigation or a public nuisance and hence that plaintiffs have suffered no damage.
*139In view of our unanimous finding in plaintiffs’ favor on these questions, it seems to me that the only logical conclusion is that plaintiffs have suffered damage in the sum of $450,000 as testified by their expert witnesses. The plaintiffs, by their amended complaint, ask for an alternative form of judgment as follows: “ or if there exist in this case such special circumstances as would justify the extension of such a privilege to the defendant, that the court’s direction for the removal of said present rigid and immovable bridge and its injunction against the maintenance of any bridge which will interfere with navigation as aforesaid be conditioned upon the defendant’s failure, within a reasonable time (to be fixed by the court) to tender to the plaintiffs the sum of $450,000 and a form of conveyance (in tenor to be fixed by the court) of an easement, with respect to the plaintiffs’ said lands, permitting the maintenance of such bridges, and to demand the due execution and delivery of such conveyance by the plaintiffs in exchange for the payment of said sum of $450,000.”
Plaintiffs do not ask for the removal of the bridge plus damages, but only for the removal of the bridge, or, as an alternative, for their damage of $450,000 (which is less than one-sixth the cost of removing the bridge as testified by defendant’s witnesses), upon the execution and delivery to the defendant of a conveyance and easement with respect to the plaintiffs’ lands, permitting the maintenance of its present bridge.
The cases cited in the majority opinion as authority for deferring injunctive relief are McCann v. Chasm Power Co. (211 N. Y. 301); Thompson v. Fort Miller Pulp & Paper Co. (195 App. Div. 271); Lyon v. Water Commissioners of Binghamton (228 id. 585) and Horton v. Niagara, Lockport & Ontario P. Co. (231 id. 386), none of which, in my opinion, justifies the conclusion of the majority of this court.
In the McCann Case (supra) there had been a dam constructed by the defendant by reason of which plaintiffs’ property at certain times was overflowed 420 feet beyond the defendant’s upper line. No land or timber belonging to plaintiffs was overflowed. The water merely went up to the sides of a rock chasm on plaintiffs’ property. Some of the plaintiffs were stockholders in the defendant’s power company, and the court found that they were actuated by some ulterior motive to harm defendant without obtaining any particular bénefit themselves. Some of the plaintiffs helped to build the dam, knowing that the water would flow back into the gorge beyond the defendant’s land, and then subsequently purchased the land of the upper riparian owners with the manifest intention of making trouble for the defendant. The plaintiffs *140had obviously suffered no damage by reason of the overflow in that part of the chasm belonging to them. Plaintiffs claimed on the trial that they wanted to build a power plant above the defendant, and that by reason of the overflow they could not do so. The appellate court (151 App. Div. 304) modified the judgment of the Trial Term, which granted plaintiffs an injunction, by suspending its present operation and providing that -the plaintiffs might at any time apply- at the foot of the judgment upon showing substantial injury from any cause to them thereafter occurring. On the trial it appeared that, while the plaintiffs could build a dam in the gorge on their property, there would be no mill site at that point — the bank on which it could be built being fifty feet above the water, and they could not carry the water downstream through a water trunk to any place where a mill might be located, without interfering with the defendant’s dam; and that, if they desired to develop a water power, they must go further up the chasm where a site for a mill could be located, and that an injunction to the plaintiffs could do no good and would greatly harm the defendant.
That case differs from the case at bar in that the plaintiffs here have proved the immediate availability of their premises for industrial and manufacturing purposes if the work of dredging, bulkheading, etc., planned and testified to by plaintiffs’ witnesses as feasible is performed, but plaintiffs’ premises cannot be profitably developed or used for manufacturing or industrial purposes without access to the Hudson river by means of the Croton river.
In the Thompson Case (supra), cited in the majority opinion, where the plaintiff sought an injunction restraining defendant from maintaining a dam and for injunctive relief, it appeared that the predecessors of defendant acquired land by a deed which recited “ the right to build a dam across said river or any part of it opposite to said farm and to abut the same against the west bank of said river on said farm and to keep and maintain the same there forever.” In the case at bar the defendant not only never acquired the right to build and maintain its present rigid bridge across the Croton river, but, on the contrary, section 15 of chapter 216 of the Laws of 1846, under which the defendant’s predecessor was incorporated and which authorized the erection of bridges over navigable streams and inlets, provided that “ such bridges shall be substantially constructed, and shall contain a draw of sufficient width to admit the passage of vessels adapted to the navigation of said river, streams or inlet, with standing masts, and shall be so attended as not to obstruct, delay or hinder, the progress of any vessel navigating said river.” This provision of the defendant’s charter was observed from 1847 or 1848 by the construction of a *141railroad drawbridge across the Croton river, which was maintained and operated until 1891, when the draw was spiked down so that it became immovable, and in the year 1898 the old drawbridge with the spiked draw in it was torn down and the present rigid bridge was constructed, in direct violation of the provision and requirement of the defendant’s charter, and that rigid bridge has been maintained down to the present time, so that the difference between the Thompson Case (supra) and the case at bar in this respect is clear. In the Thompson Case (supra) the court found that the maintenance of the defendant’s dam was not a public nuisance, and therein is that case plainly distinguishable from the case at bar. On this appeal we are unanimous in finding that the defendant’s bridge is a public nuisance, obstructing the use of the Croton river, which we find to be navigable. Besides, in the Thompson Case (supra), the court held that the damage to the plaintiff’s farm was so small that it “ almost defies computation.”
In Lyon v. Water Commissioners of Binghamton (supra) the plaintiffs owned a mill and had riparian rights on the Susquehanna river, dating back to 1828. In 1887 the defendant began diverting water above plaintiffs’ mills for the purpose of supplying the city of Binghamton. Such diversion continued and increased up to the time of the trial. The average flow of the river was 4,400 cubic feet per second. The plaintiffs’ mill was not equipped to use over 278 cubic feet per second. The court said (at p. 590): “ There is a great superabundance of flowage over the crest of the dam, unused and going to waste, notwithstanding the diversion of water by the city. The plaintiffs have sustained no damage in the past and no such damage is threatened. The trespass upon their legal rights by the city is not shown to have prevented or interfered with plaintiffs’ present or contemplated use of their lands and water power rights.”
In the case before us the plaintiffs have shown, by uncontradicted testimony, that the defendant is interfering with their “ present or contemplated use of their lands.”
In Horton v. Niagara, Lockport & Ontario P. Co. (231 App. Div. 386), referred to in the majority opinion by Mr. Justice Davis, the defendant had trespassed upon a small part of plaintiffs’ land by the erection of poles, towers, wires, etc., which were connected with the defendant’s power house, no part of which, however, encroached upon plaintiffs’ land. The plaintiffs brought an action for equitable relief for the removal of defendant’s said structures. The court held that the value of the land encroached upon was small and that the granting of an injunction compelling the defendant to remove its structures would work great injury and incon*142venience both to the defendant and to the public, and refused equitable relief, saying that a court of equity is not bound to grant a mandatory injunction “ simply to protect a trivial, technical or unsubstantial right,” and the relief given to the plaintiffs in that cáse was precisely in line with the request of the plaintiffs in their amended complaint, which I have above quoted. The court in that case gave judgment to the plaintiffs, fixing the value of the lands encroached upon by defendant, and ordered plaintiffs, upon payment of such sum, to execute and deliver to the defendant a deed of said lands, or, in the event of failure of payment, that the defendant be required to remove its structures. The plaintiffs in the case at bar are, in my opinion, entitled to similar relief, namely, an injunction requiring the removal of the present bridge and enjoining the defendant and its successors and assigns from constructing or maintaining any bridge in the future that shall interfere with the plaintiffs’ rights in the Croton river, unless the defendant shall, within a reasonable time to be fixed by the court, pay to the plaintiffs their damage in the sum of $450,000 upon the execution and delivery by plaintiffs to the defendant of a proper deed or conveyance of an easement with respect to plaintiffs’ lands, permitting the maintenance of such bridge.
The judgment should be reversed on the law and the facts, with costs, and judgment given plaintiffs for the injunctive relief demanded in the complaint, unless defendant, within a time to be fixed by the court, shall pay to plaintiffs their damage in the sum of $450,000 in exchange for a proper deed or conveyance of an easement with respect to plaintiffs’ said lands, and permitting the maintenance by defendant of such bridge, and for the costs of this action.