The findings of facts at the circuit being by the judge, without a jury, there would be no need of commenting on them here, were it not that passing them by might seem to imply an acquiescence in their correctness, and prejudice future proceedings in the action. The testimony does not seem to the court to come up to the statements in the decision, and the facts, as they appear here, (so far as the situation and uses of the plaintiff’s lands are concerned,) may be thus stated. The plaintiff owns a farm fronting on the easterly shore of the Hudson river, and lying on an indentation, or bay, of such easterly shore. In front of his farm, for a distance varying from 1000 to 1500 feet in breadth, (east and west,) along his whole front, lies a level flat, on which at low water there is but a few inches depth of water, and at high water some three or four feet depth of water. The flats are the property of the state, and the channel of the river lies westerly of them. The plaintiff has, on his farm, where it fronts the river, sand banks, from which, for many years-, the brickmakers on the opposite side of the river have procured more or less of moulding sand. This they have taken chiefly in the winter, with teams crossing on the ice, though they could take it, and have taken it, at times, by scows (with and without masts) of from 16 to 60 tons burthen, which scows they could lay within about 200 feet of the shore at low water, and there loaded them by teams, while at high water they could go within 50 feet, and then be loaded by means of long planks, directly from the shore. The value *628of the annual sales is quite uncertain. Easterly of the channel of the river, and along these flats, at a distance of from 1000 to 1200 feet from the plaintiff’s farm, the defendants, under their charter, (Laws of 1846, p. 272,) have constructed a continuous line of rail road, without drawbridge or passage for scows in summer, or for teams in winter; so cutting off the access, by the river, to the plaintiff’s farm, sand banks, &c., and destroying the navigation he before had. For this injury he brings this action, and claims 1. A specific performance, by the defendants, of the duty imposed on them by the- 15th section of their charter, to build a drawbridge opposite his farm. 2. Damages for the injury already done to him, and a provision (in the judgment) for any further damages he may sustain, before the defendants build the drawbridge aforesaid.
The case of Gould v. The same Company, (2 Selden, 522,) would have entirely settled this case, were it not that the plaintiff’s farm fronts on “a bay,” and therefore, is claimed to come within the provision, as to building drawbridges “ for the free passage of such vessels,” &c.) into and out of such bays
The general question of damages for injuring the private rights (of navigation, fishing, &c.) of individual .proprietors along the bank of this river, where the company has under its charter built on the property of the state, would seem to be very clearly and decidedly adjudged, in the case just cited, and can require no detailed opinion here. If this case be not so different from that, by reason of the plaintiff’s location on a bay, as to entitle him to a drawbridge, then (by that case) he has no right to recover damages for an obstruction that is there by leave of the state, on the lands of the state. Is he, then, entitled to have a drawbridge built there ? Can his prayer for spécific relief be granted 1 I must say that the answer to this question seems to me as plain, as does that to the previous part of the case ; and it is twofold. 1. Ho one individual can maintain this action for a specific performance of a public duty, imposed for the public benefit. In this particular case,- thére are four farms fronting on this bay. Has each proprietor a right to such specific performance, by having a drawbridge built in *629front of his farm ? If so, four drawbridges must be built in about one mile ! If not, how is this plaintiff entitled to have it in front of his farm, rather than either one of the other three to have it in front of his 7 The mere statement of the case shows the duty to be a public one ; the benefit, intended to be secured, is for the public. And that public, the people of the state, by the proper officer, and they only, can institute proceedings to compel a compliance with that duty.
[Albany General Term, March 3, 1856.2. It cannot be that this “ bay,” if correctly described in the statement of facts, is such .a bay, as by the 15th section the company are bound to furnish with a drawbridge, “ to provide for free passage of such vessels as heretofore have passed, or now can pass,” &c. That some sort of water craft can, at some times, pass near to the shore of a curve in the stream, does not make the “ bay” spoken of.
It can mean, in view of public necessity, or convenience, such bays only as have a general navigation, deserving the name of navigation. The utmost pretended extent of the navigation of this bay, falls far short of the commercial facilities, afforded to its trade by the ice in the winter; and a drawbridge, to allow teams to pass in the winter, will probably not be claimed as within the intention of the legislature.
A new trial must be granted.
Harris, Watson and Gould, Justices.]