This action is not to be treated as one based upon negligence. The proof is clear that the defendant is in possession of a railroad running from and between Pearsalls and Long Beach, in Queens county. This road, by one of its bridges, is proved to have closed up a common water highway. The action was made out when the obstruction was established and the damage resulting therefrom. It was for those who obstructed or who assumed the road with the obstruction to the water highway. It may be that there was no authority for the bridge. It is more likely that the road was lawful, upon condition that the water highway should be kept open. It would not justify the defendant, if this was the condition, to prove a bad bridge, one which would not work so as to free navigation. The case is not like the statute in respect to railroad fences. The adjoining owner has no right to .a fence except by statute, and if the fence is well built, a sudden destruction of it would free the company until it received notice or ought to have discovered the defect. The right of way over the navigable water is absolute and cannot be taken away by the legislature. Besides, if a railroad fence is proven down, and injury results, it is not the duty of the injured party to‘ prove how long it had been down. Finally, this bridge is proven to have been an obstruction from Thursday night, August twenty-nine, until Sunday, September two, which is strong evidence of negligence in a case like this. The company had notice of the defect Thursday night, and how long before it does not appear.
*364The judgment should be reversed, with costs, and that of the justice affirmed.
Dykman, J., concurred.