The canals are the property of the State, constructed and maintained at the public expense, to facilitate the transportation of property, free- to the use of all citizens who comply with established regulations in regard to the navigation of the same, and are in every sense public highways. The act of the defendant in constructing and operating a bridge over the canal for its own use, was rightful and lawful in every respect, done with the consent of the State, expressed in legislative action. The privilege thus granted to the defendant was given to it upon the condition that the bridge should be constructed in a proper and secure' manner, and operated with due care and caution, so as not unnecessarily to impair the usefulness of the canal or delay navigation. This obligation on the part of the defendant is absolute, positive and continuous, and admits of no other limitations or qualifications than those mentioned. The privilege thus granted is bestowed on the defendant in its private capacity, and for its gain and advantage in transacting the business which it is organized to do.
The defendant’s obligation to beep the bridge in repair and operate the same with due care and caution, has its foundation in an implied contract between it and the public, and the consideration which upholds the promise on the part of the defendant is the -privilege granted it by the State, permitting it to build and operate a bridge over the canal for its exclusive benefit and advantage. The *294defendant’s act of negligence in operating the draw and moving the engine was a breach of its assumed duty to the State, in consequence of which the canal became obstructed, navigation suspended and damage thereby accrued to the plaintiff. In all such cases the contract with the sovereign power inures to the benefit of every individual interested in its performance, and he may maintain a suit in the nature of an action on the case to recover his damages. This rule of law is now well established and applies to all contracts with the State, entered into ,by private persons or corporations, whether the same, be express or implied.
The proposition is formulated with care and accuracy in several reported cases, and is as follows : “ Whenever an individual or corporation, for a consideration received from the sovereign power, has become bound by covenant or agreement, either express or implied, to do certain things, such individual or corporation is liable, in case of neglect to perform such covenant, not only to a public prosecution by indictment, but to a private action at the suit of any person injured by such neglect. In all such cases the contract made with the sovereign power is deemed to inure to the benefit of every individual interested in its performance.” (Weet v. The Trustees of the Village of Brockport, reported in 16 N. Y., 163, in a marginal note in the case of Conrad v. The Trustees of the Village of Ithaca; Robinson v. Chamberlain, 34 N. Y., 389.) In the last of these cases the defendant’s liability to the plaintiff was adjudged to rest on the principles of law mentioned, the facts in the case bearing a striking similarity to those in the case in hand. Chamberlain was a contractor to keep a section of the Chenango canal in repair for one year, and during that time the plaintiff’s boat entered a lock which the defendant suffered to be out of repair, and in consequence thereof injury happened to the boat.
This case was followed in Fulton Fire Insurance Company v. Baldwin (31 N. Y., 648), where the essential facts were the same, the defendant Baldwin, being a contractor to keep a section of the canal in repair, negligently suffered an obstruction to remain and a canal boat, navigating the canal, ran upon the same and received injuries in consequence of which the boat was sunk and the cargo injured.
Reference may be made to another class of cases bearing upon the subject, where a municipal corporation is organized under a *295charter, imposing upon it the duty and obligation of keeping the streets within the corporate limits in repair, it is liable in a civil action to persons who have suffered an injury by reason of a neglect to perform such duty. (Conrad t. The Trustees of the Village of Ithaca, 16 N. Y., 153; The Rochester White Lead Co. v. The City of Rochester, 3 Comst., 465; McCarthy v. The City of Syracuse, 46 N. Y., 194; French v. Donaldson, 57 id., 496; Johnson v. Belden, 47 id., 130.)
It was disclosed on the trial that' a bridge of some kind had been maintained at or near this point for a period of thirty-five years, but the one now in use is of more recent construction, and upon a different plan. In the absence of any proof upon the subject, it is proper to assume that the defendant enjoys this privilege in pursuance of the provisions of the general railroad act, which may now be regarded as the general charter of all such companies.
The twenty-eighth section of the act confers the privilege on railroad corporations to bridge the canals whenever the route of the road crosses the same, and by the same section, the duty to keep the same in repair and operate the same with care and caution, is enjoined on the railroad’company. If the statute was silent on the subject of repairs, and the use of due care and caution in the management, the same obligation would exist on the part of the railroad’ company towards the public, arising out of the implied contract. The common law imposes the same liability on individuals and corporations receiving franchises from the State, although the charter bestowing the franchise is entirely silent on the subject. -(See West v. The Trustees of the Village of Brockport, supra, and the English cases there cited; Heacock v. Sherman, 14 Wend., 58; Dygert v. Schenck, 23 id., 446; Woodring v. Forks Township, 28 Penn. [4 Casey], 355; Township of Newlin v. Davis, 77 Penn., 317; Perley v. Chandler, 6 Mass., 453; Phœnixville v. Phœnix Ins. Co., 45 Penn., 135; Rex v. The Inhabitants of Lindsey, 14 East, 317.)
It has been repeatedly held that where a railroad company neglects to keep the street, highway or stream which it may intersect or cross in repair, and in consequence thereof, injuries happened to any of the public, a civil suit may be maintained in the name of the party injured, against the company to recover such damages as may have happened in consequence of such neglect. This duty to repair and *296keep in safe and secure condition is so plain and positive tliat it has been frequently enforced in proceedings by mandamus. ' (Garbutt v.. The Rochester and State Line R. R. Co., 16 N. Y., 294; The People ex rel. Green v. The Dutchess and Columbia R. R. Co., 58 id., 152.).
If these views are correct, the defendant’s liability is established without considering whether the recovery may not be sustained on other grounds. The damages, sustained by these plaintiffs, are the direct result of the defendant’s negligence and breach of duty. They were on a trip commenced before the obstruction occurred they were near by with their boats when it happened; they had paid for the privilege of navigating the canal at that time and place;. they were necessarily delayed by the careless and negligent act of the defendant. Nothing could have been done by them, or either of them, to lessen or mitigate the damages sustained.
Suppose the boat caught in the draw, and detained, had received no injuries, could not the owner have maintained an action for damages sustained by reason of the delay ? I cannot conceive of any reason why he could not. These plaintiffs were in the same section of the canal, engaged in the. same business and were necessarily detained by the obstruction, as much so, for the same reason, as the boat actually caught while passing through the bridge.
■ The plaintiffs were carriers of goods by canal, a particular kind of business, the privileges of which were secured for a consideration paid by them to the State, and every interference or interruption which delayed the progress of the trip, injured only them and the-owners of the cargo, and the damages thus sustained were special to-them and not common to the public.
Damages' of the nature of those sustained by the plaintiffs would most naturally, and almost necessarily, happen to persons navigating-the canal in case the bridge was not properly constructed and carefully managed, and must have been fully understood and comprehended by the defendant when it received the franchise and undertook to perform the conditions imposed as a consideration therefor..
Judgment ordered for the plaintiff in each action on the verdict,, with costs.
Present — Smith, P. J., Hardin and Barker, JJ.So ordered. '