The plaintiff is the proprietor of a dock on the margin of a bay on the east side of the Hudson river, fronting his farm, in the town of Red Hook, under a patent from this state, issued pursuant to a resolution of the commissioners of the land office, dated on the 19th of November, 1849. The defendants have, pursuant to their act of incorporation, passed on the 12th of May, 1846, constructed their railroad across the bay, running about 1900 feet west from the plaintiff’s dock. The plaintiff called upon the company to extend his dock to, and in front of, their road, as a measure required by the charter of the defendants, and necessary to restore it to its former usefulness. The defendants have refused to do so, but have constructed a drawbridge, which is sufficient for the free passage of such vessels as have heretofore passed into and from the bay, and contend that nothing more is required by their act of incorporation. The question between the parties arises on the 15th section, of the act, which is in the following words: “ § 15. The said corporation is hereby authorized to build or erect a bridge over Spuytenduyvel creek, and other navigable streams or inlets, for 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 the 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 the said river. They are also required to construct such bridges as may be necessary to provide for the passage of such vessels and boats as heretofore have [passed] or now can pass, into and from the' same, the bays that may be crossed by said railroad ; and if any wharf or dock *410shall be cut off by the said railroad, the said company shall ex tend, 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.”
The legislature, in enacting this section, seems to have designed to protect the interests of the proprietors of three distinct classes of docks : first, those on the navigable streams or inlets ; secondly, those on the bays from which there might be a free passage for vessels through the opening of a drawbridge; and thirdly, those which might be cut off by the road. The provisions relative to the crossing of the streams, inlets and bays, do not particularize docks, but they were no doubt designed for the protection of the interests of the proprietors of all the property on those waters, and especially of that species which is the most essential' to their profitable use. Such proprietors have all the indemnity which is constructively granted where authority is given to bridge our navigable waters. The connection between the docks on those waters and the channel or navigable part of the Hudson river, although modified, is not severed or destroyed. The terms used by the statute to designate the docks to be extended are explicit and forcible. They are those which have been 11 cut off ”—that is, entirely separated. How from what has the plaintiff’s dock been wholly severed ? Hot certainly from the land, nor one part of it from another, nor from the contiguous waters. Hor has its connection with the navigable part of the river been destroyed. The passage may be narrowed to the width of the drawbridge, but is not destroyed, or if the provisions of the act relative to drawbridges have been fully carried out, seriously impaired.
- There are some considerations of great weight to show-that the legislature could not have intended to go beyond what a literal interpretation of the act calls for, and require this company to extend the docks on the streams and bays, (for in this respect those ón each are in the same category,) to the railroad. (1.) ■ There is no express grant of the intervening lands or of *411the right to take and occupy them. Possibly if the requisition had been positive, and there had been nothing in the statute to raise an inference to the contrary, the necessary power and right to carry out might have been implied. But, as has been shown, a literal interpretation of the statute is the other way. Even when the duty of extending the dock beyond the road is required in clear and explicit terms, the right to take and occupy the lands in front was not left to inference, but was expressly granted. The inclusion of a grant of lands to a small extent, on the outside of the road, excludes the mere implication of a grant of much more extensive territory on the inside of it, and indeed raises an inference that no such intermediate territory would be called for by the provisions of the statute. (2.) It could not have been designed to impose upon the defendants a burthen of an unusual character, and one which was not absolutely necessary for the indemnity of the parties whose interests might be affected. It was undoubtedly supposed that the then contemplated enterprise would prove to be, as it is, highly beneficial to the public. Much doubt was entertained, and (as it has turned out,) with reason, as to its productiveness to the stockholders, and capitalists were therefore reluctant to engage in it. These considerations called for a liberal charter, and no doubt the legislature intended to grant one of that character, certainly not one weighed down by burthens too heavy to be borne. It was well known that the road must necessarily cross many streams and bays, on the margin of which there were numerous docks. The legislature must have seen, and if not, it must have been perceptible to the applicants, that to carry out all the docks on those waters beyond the road, would have been productive of an expense which the company, pressed down as it was with the numerous difficulties resulting from the many obstacles which it had to encounter in the construction of the road, could not have sustained. Certainly the legis-. lature could not have intended to impose, nor the company„to encounter, any unnecessary burthen. It has long been the policy of this state, (sanctioned by repeated decisions of our courts,) to grant new franchises without any provision for com*412pensation to the proprietors of previous ones, for consequential damages, so long as the older franchises are not directly invaded. That course is required by the public interests, and grantees of such franchises may well be supposed to take them subject to the reservation and exercise of this power. In the cases under consideration, a reasonable (although possibly not a full) indemnity against loss has been clearly granted. To extend it by inference, as the plaintiff requests, would be productive of an expense in most cases far beyond the value of the dock, or at any rate would greatly exceed the damages sustained. Had the legislature designed that a full indemnity should be extended to these dock proprietors, provisions would have been made to ascertain, and enforce the payment of the damages actually sustained. Ho principie of public policy or justice would have required any thing further. If in any instances where private property has been taken for public purposes, compensation far beyond its value and the consequent damages, has been exacted, they have been very rare, and an intent to adopt a measure which would so effectually retard public improvement ought not to be inferred.- If the requisition had extended, and been confined to the actual damages in those’ cases, the amount, when there are convenient drawbridges, could not have been very considerable, and might have been paid without subjecting the company to any very serious inconvenience, The argumentum ab inconvenieñti should not be used to contradict the plain and obvious import of a statute, but it may be adopted with propriety to negative the applicability of a statutory provision to objects not literally and clearly included. (3.) In several of the streams and bays crossed by the railroad, the docks are quite numerous, and situated near to each other. Extensions of such, to and over the road, would seriously obstruct the navigation, and injure the fisheries in those waters. It cannot be reasonably inferred that the legislature would require a procedure which would prove so prejudicial, and which would be productive of damages for which no compensation has been, or could be,, effectually provided, and *413especially in an enactment evidently designed for the special protection of one of those interests.
[DutcUess Cenesau Teem, July 4, 1853.Bdrculo, Brown and S. B. Strong, Justices.]
Upon the whole I am satisfied that the legislature did not confer upon the plaintiff the right which he demands and seeks to enforce in this action. It has provided the usual, and a reasonable preventive against loss in such a case, and with that he must be content.
The judgment of the special term must be affirmed with costs.