Citations
- 173 N.Y. 84
Full opinion text
Vann, J.
On the 2nd of June, 1888, the plaintiffs adopted a resolution of which the following is a copy: “Besolved: That Rathan C. Jessup be and is hereby given liberty to make a roadway and. to erect a bridge across the Great South Bay, commencing at the south point of P-otunk Reck; thence Tunning southerly to the beach, the said bridge to be a drawbridge of a width of not less than twenty feet, the height above the meadow three feet, and the draw to be twenty feet wide, and the said Rathan C. Jessup shall not cause any unnecessary delay to those navigating the waters of said bay.”
This resolution is now before us for the third time. On the first occasion the power of the plaintiffs to adopt the resolution was strenuously contested, but we held that through the Andros and Dongan charters they had power to authorize a riparian proprietor to construct and maintain at the locality in question such a structure as the state itself might have authorized had it, instead of the town, succeeded to the title and control of the English crown over the waters affected. (People ex rel. Howell v. Jessup, 160 N. Y. 249.)
On the second occasion the plaintiffs contended that the resolution conferred a revocable license only, and that it did not authorize the construction of a solid roadway and a drawbridge but simply a structure on piles with a drawbridge therein, while we held that the right created was a franchise, which empowered the defendant to make any reasonable and ordinary roadway, out of such materials as are commonly used for that purpose. We further held that the grantee waived no right by building a temporary structure in the first instance. (Trustees of Southampton v. Jessup, 162 N. Y. 122.)
In construing the resolution we remarked that a grant from the public, if ambiguous, should be construed in the interest of the public, but that this principle should be applied only when doubt arises, “ for when the meaning is clear there is no room for construction.” We then said : “ The defendant was not to erect a bridge and roadway, but to make a roadway and erect a bridge. * * * In the absence of specifications in the grant, the defendant had the right to make a roadway out of the materials in common use for the construction of roads, such as earth and stone. Wood is not ordinarily used for the purpose, and the right conferred was not to build a viaduct, but make a roadway, which is generally solid from the ground up. If the plaintiffs wished to limit the defendant to a wooden structure, resting on piles, which would have been more like a bridge than a roadway, they should have said so. The resolution is silent upon the subject, for the words, ‘ height above the meadow three feet,’ refer to the bridge, and whatever was said between the parties before it was passed, assuming it to' be admissible, showed that the defendant wished to build a solid roadway on the south side such as he had already built on the north side. He applied orally to the plaintiffs for authority to build a roadway and bridge. They went over the ground with him, saw the situation, advised with the neighbors at a public meeting, and on receiving the consent of all but one out of over two hundred, granted his application, specifying the kind of bridge, but making no specification as to the roadway. There is no evidence to support the conclusion of the trial judge that it was the intention of the parties to have the roadway built of timber. * * We think the defendant had the right to build any reasonable and ordinary roadway, such as an embankment of earth, but whether he could dig upon the land of the plaintiffs in order to get the material is open to question, and as the matter has not been fully argued we do not now decide it. The evidence suggests, but does not show, that the earth and sand of the roadway may, unless confined in its place, ultimately wash away somewhat and result in the formation of sandbars which will obstruct navigation. We pass upon no question relating to this subject. The complaint should-not be dismissed because the investigation upon the trial under review was not thorough enough t