Trustees of Freeholders & Commonalty v. Jessup

64 A.D. 525, 72 N.Y.S. 312

Opinions

Hirschberg, J.:

In affirming the judgment in this action we adopt the opinion of Mr. Justice Wilmot M. Smith at Special Term,

* with this addition-: On the first trial of this action the judgment in favor of the plaintiffs-was based upon the theory that the resolution passed by the trustees of the town of Southampton by virtue of which the defendant constructed the roadway and bridge which are the subject of controversy was a mere license, and, as such, revokable at pleasure. The Court.' of Appeals decided that it amounted to a franchise, and accordingly reversed the judgment and granted a new trial. (Trustees of Southampton v. Jessup, 162 N. Y. 122.) Judge Vann, writing for the Court of Appeals, laid considerable stress upon the fact that none of .the trustees testified upon that trial as to the character of the-roadway which the defendant was authorized to build, so far as the-same may have been understood and declared at the time the franchise was granted. The trustees insist that it was the intention at that time that the roadway should be open to the passage of the waters of the Great South bay, and not a solid embankment obstructing navigation, but as Judge Yaw pointed out, the franchise by its terms was specific and unambiguous as to the kind! of bridge which; the defendant was authorized to build, viz., a drawbridge of specified- dimensions, but made “ no specification as to the roadway.” As. a matter of fact, however, the defendant constructed an open roadway immediately upon receiving the franchise, and it was many-years thereafter that he commenced the work of. changing it into-a solid embankment, which- work is enjoined' by the judgment now under consideration. In the opinion of Judge Vann the silence of the trustees on the former trial, that is, their failure to testify as to-the intention of the parties on the subject of the kind of roadway to be built under the franchise, was significant, leaving nothing on the question of intention except the resolution itself.

On this trial the trustees testified that the intention of both the parties, the trustees and the defendant, was that the roadway should be of wood and open to the water’s flow. If this. evidence is competent, as the dictum referred to would appear to indicate, the-judgment appealed from is abundantly supported. In our opinion it is competent and controlling evidence, .quite independently of the question whether it may be permitted in order to explain any supposed ambiguity in the language of the resolution or to supplement its terms. The resolution clearly allows the defendant to build but one roadway or bridge. He acted under it in building the original roadway, and if that structure, as then built, was in accordance with the intention of the parties at the time the franchise was given, and was intended by the defendant at that time to be a completed and permanent structure, exhausting the authority conferred, he could not without an additional franchise lawfully change its character-years afterwards to the manifest detriment of the inhabitants of the-town and against the wishes of the trustees. His contention is that, the original open structure was but a temporary matter, which he. then designed to subsequently make permanent in character by filling in with earth and other material. The trustees contend otherwise, and upon this disputed question of fact it seems clear that evidence may lawfully be received -as to what was said and done by the parties at the time the franchise was applied for and granted, as well as at the time.the work was originally completed and inspected. The defendant’s claim that the structure was temporary, and that he intended from the outset to ultimately fill it in, is inserted in the amended, answer, and it was competent for the plaintiffs to forestall it by proof that the structure, as first built, was what the defendant intended to build in accordance with the understanding existing at the time he acquired his rights, and that he impliedly admitted that, fact when the work was done. In this view the evidence is overwhelming that the defendant did not build the open roadway as a temporary structure, but as a permanent creation, in full accord with the intention of both parties at the time, and. as a practical exposition of his understanding of the nature and effect of the rights conferred upon him and of the full scope and purport of his franchise.

The judgment should, therefore, be affirmed upon the law and facts, with costs.

. Woodward, Jenks and Sewell,'JJ., concurred; Goodrich, P. J., read for modification and affirmance.

The opinion referred to is printed on page 534.