Davis, J.
The plaintiffs are the owners of lands on the Croton river near its outlet into Croton bay — a part of the Hudson river. Across the mouth of the river the defendant has a bridge. It is claimed by plaintiffs that the Croton river is navigable and that the bridge of the defendant interferes with its navigability. The defendant denies that the river is navigable or has been for many years. The theory of the action is that the bridge is a public nuisance interfering with the plaintiffs’ rights, and this action is brought for the purpose of abating the nuisance by requiring a drawbridge to be installed; or, in lieu of that relief, for damages. On the trial the complaint was dismissed on the ground that the river was not navigable, and on other grounds.
When the defendant’s predecessor, The Hudson Eiver Eailroad Company, was organized by a special act of the Legislature (Laws of 1846, chap. 216) permitting the construction of a railroad from New York to Albany along the Hudson river, section 15 of that chapter provided in part: “ The said corporation is hereby authorized to build or erect a bridge over the Spuytenduyvel creek and other navigable streams or inlets, for the passage of the said road or ways, from or to the city of New York. Such bridges shall be substantially constructed, and shall contain a draw of sufficient width to admit the passage of vessels adapted to the navigation of said river, streams or inlet, with standing masts, and shall be so attended as not to obstruct, delay or hinder, the progress of any vessel navigating said river.” There is proof (and it is not disputed) that in earlier times the Croton river was a navigable stream to a limited extent in its course and in the type of boats that could navigate it for commercial purposes. In 1841 there was a flood caused by the bursting of a dam, which somewhat [134] interfered with navigation by casting earth and rocks into the bed of the stream. Thereafter the question of its navigability becomes the subject of dispute. Nevertheless, there is proof that between the years 1841 and 1888 there was commercial navigation by poling boats by hand up the river at rising tide to docks and mills located on the shore. There was a dock where shipments of grain and coal wer'e received; and raw material was brought in and finished products carried out from a dock at a wire mill there located. There is some evidence that vessels with masts came in and departed at somewhat infrequent intervals. Sufficient proof there is to establish the character of the river as a navigable stream during the period mentioned.
The wire mill was not a financial success and was abandoned about 1868. The use of another dock for shipping of some sort continued until about 1886. A pumping station for the Ossining water works was located on the river, and as late as 1889 a schooner brought material to build this pumping station; and it was intended to bring in coal by water, but difficulty ’was experienced in getting the railroad company to open its drawbridge, so that method of delivery had to be abandoned.
That the railroad corporation recognized that this river was one of the “ other navigable streams ” mentioned in the statute is indicated by the fact that in building the railroad a drawbridge was installed. This bridge remained until 1891, at which time navigation of the river seems to have been abandoned through nonuser, at least temporarily. In accordance with the prevailing fashion at the time, the railroad corporation proceeded to determine its rights for itself rather than seek remedial legislation, a determination by the court, or the extinguishment of existing rights by purchase. For, in the lack of present use for navigation on the river, the railroad in 1891 fastened down its drawbridge, making it immovable, so that boats, if any there were, could not pass. In 1898 the drawbridge was replaced with a new rigid bridge constructed close to the surface of the river, so that only the smallest boats, incapable of carrying cargoes, could then pass under it. There is no legal justification for the railroad corporation in thus constructing its bridge and closing the river to possible navigation.
For forty years and more there has been no navigation on the river. It is claimed by the plaintiffs that to a large extent this was due to the acts of the defendant just stated. On the part of the defendant it is said that the river is not and has not been during that time navigable in fact; and that there is no occasion or use whatever for navigation.
It is established that the bed of the river, together with the [135] mouth where it opens into the bay, has become obstructed by silt and debris accumulating during this period in which the river has not been in use for navigation; that the lands along the shore and those under water in front of the premises of plaintiffs and the sites of the old docks have grown up to brush and sedge; and that there would be no practicable way of reaching the channel. It has been found that “ between deep water of the Hudson and the Albany Post Eoad bridge; such channel as exists, is at best 80 feet wide with a minimum depth of 5 feet at mean high tide and 1.6 feet at mean low tide.” There is practically "no dispute as to this finding.
There has been no legal declaration that the river is not navigable. Having once been capable of navigation, it did not become non-navigable by the fact of nonuser or because its channel became obstructed. So, as the capability of use remains, the river is in law navigable. It is the susceptibility of use, not the extent of existing commerce, that furnishes the test of navigability. (Economy Light Co. v. United States, 256 U. S. 113; United States v. Utah, 283 id. 64.) The stream is still navigable for small craft with the use of present types of motive power, or would be if it were not for the obstruction created by the defendant. So .we may say that the river is navigable both in law and in fact in the limited manner indicated.
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Davis, J.
The plaintiffs are the owners of lands on the Croton river near its outlet into Croton bay — a part of the Hudson river. Across the mouth of the river the defendant has a bridge. It is claimed by plaintiffs that the Croton river is navigable and that the bridge of the defendant interferes with its navigability. The defendant denies that the river is navigable or has been for many years. The theory of the action is that the bridge is a public nuisance interfering with the plaintiffs’ rights, and this action is brought for the purpose of abating the nuisance by requiring a drawbridge to be installed; or, in lieu of that relief, for damages. On the trial the complaint was dismissed on the ground that the river was not navigable, and on other grounds.
When the defendant’s predecessor, The Hudson Eiver Eailroad Company, was organized by a special act of the Legislature (Laws of 1846, chap. 216) permitting the construction of a railroad from New York to Albany along the Hudson river, section 15 of that chapter provided in part: “ The said corporation is hereby authorized to build or erect a bridge over the Spuytenduyvel creek and other navigable streams or inlets, for the passage of the said road or ways, from or to the city of New York. Such bridges shall be substantially constructed, and shall contain a draw of sufficient width to admit the passage of vessels adapted to the navigation of said river, streams or inlet, with standing masts, and shall be so attended as not to obstruct, delay or hinder, the progress of any vessel navigating said river.” There is proof (and it is not disputed) that in earlier times the Croton river was a navigable stream to a limited extent in its course and in the type of boats that could navigate it for commercial purposes. In 1841 there was a flood caused by the bursting of a dam, which somewhat [134] interfered with navigation by casting earth and rocks into the bed of the stream. Thereafter the question of its navigability becomes the subject of dispute. Nevertheless, there is proof that between the years 1841 and 1888 there was commercial navigation by poling boats by hand up the river at rising tide to docks and mills located on the shore. There was a dock where shipments of grain and coal wer'e received; and raw material was brought in and finished products carried out from a dock at a wire mill there located. There is some evidence that vessels with masts came in and departed at somewhat infrequent intervals. Sufficient proof there is to establish the character of the river as a navigable stream during the period mentioned.
The wire mill was not a financial success and was abandoned about 1868. The use of another dock for shipping of some sort continued until about 1886. A pumping station for the Ossining water works was located on the river, and as late as 1889 a schooner brought material to build this pumping station; and it was intended to bring in coal by water, but difficulty ’was experienced in getting the railroad company to open its drawbridge, so that method of delivery had to be abandoned.
That the railroad corporation recognized that this river was one of the “ other navigable streams ” mentioned in the statute is indicated by the fact that in building the railroad a drawbridge was installed. This bridge remained until 1891, at which time navigation of the river seems to have been abandoned through nonuser, at least temporarily. In accordance with the prevailing fashion at the time, the railroad corporation proceeded to determine its rights for itself rather than seek remedial legislation, a determination by the court, or the extinguishment of existing rights by purchase. For, in the lack of present use for navigation on the river, the railroad in 1891 fastened down its drawbridge, making it immovable, so that boats, if any there were, could not pass. In 1898 the drawbridge was replaced with a new rigid bridge constructed close to the surface of the river, so that only the smallest boats, incapable of carrying cargoes, could then pass under it. There is no legal justification for the railroad corporation in thus constructing its bridge and closing the river to possible navigation.
For forty years and more there has been no navigation on the river. It is claimed by the plaintiffs that to a large extent this was due to the acts of the defendant just stated. On the part of the defendant it is said that the river is not and has not been during that time navigable in fact; and that there is no occasion or use whatever for navigation.
It is established that the bed of the river, together with the [135] mouth where it opens into the bay, has become obstructed by silt and debris accumulating during this period in which the river has not been in use for navigation; that the lands along the shore and those under water in front of the premises of plaintiffs and the sites of the old docks have grown up to brush and sedge; and that there would be no practicable way of reaching the channel. It has been found that “ between deep water of the Hudson and the Albany Post Eoad bridge; such channel as exists, is at best 80 feet wide with a minimum depth of 5 feet at mean high tide and 1.6 feet at mean low tide.” There is practically "no dispute as to this finding.
There has been no legal declaration that the river is not navigable. Having once been capable of navigation, it did not become non-navigable by the fact of nonuser or because its channel became obstructed. So, as the capability of use remains, the river is in law navigable. It is the susceptibility of use, not the extent of existing commerce, that furnishes the test of navigability. (Economy Light Co. v. United States, 256 U. S. 113; United States v. Utah, 283 id. 64.) The stream is still navigable for small craft with the use of present types of motive power, or would be if it were not for the obstruction created by the defendant. So .we may say that the river is navigable both in law and in fact in the limited manner indicated.
The principal property of the plaintiffs consists of an old manor house with some old farm buildings and an apple orchard. Otherwise the lands are unimproved and limited in extent for any agricultural purposes. There are 35.7 acres of upland and 51.8 acres of sedge. It is said that these lands are assessed for $13,000. With other lands, including lands under water, the total acreage of plaintiffs is 153.2 acres. These lands, as plaintiffs claim, have an unusual value because of their favorable location with ready access to the railroad, to the Post road, and to deep water, thereby furnishing exceptional advantages for shipping. Proof was offered by them that dredging at a cost of from $18,000 to $25,000 would deepen the channel to seven or eight feet at mean high tide; and that this depth could be maintained at an expense of $1,200 a year. Their ambitious plans did not stop with these slight improvements, for still there would be no access to the shores. Therefore, they have a plan of improvement contemplating bulkheading both sides of a 300-foot channel to the drawbridge, and both sides of a 100-foot channel running north 850 feet parallel to the Post road; dredging a channel 13 feet deep and 100 feet wide from deep water in the Hudson, widening to 300 feet in the area between the railroad and the Post road; then filling in behind all bulkheads to a level of [136] five feet above mean high water. The cost of this enterprise is estimated at about $700,000. Just how this large sum is to be raised under present financial conditions is not stated. This will leave eighty-five acres of improved land north of the channel and forty-seven acres south of it. This, according to experts, will make the value of the land from $2,405,000 to $3,140,000 for use as industrial sites. The cost to the railroad of putting ,in a drawbridge is eoncededly $3,000,000.
All these values to be given the land depend entirely on testimony of experts based oh the value of land at other points on the Hudson river where industrial enterprises have already been located. There is no proof whatever of any offer for any of plaintiffs’ lands or of any prospect of a sale. The values exist only in the imagination based upon conditions prevailing several years ago. No account is taken of the present general business and economic depression or of the fact that many industrial plants are now idle and practically all others are operating on a greatly decreased scale; and that many could be bought at a small fraction of their original cost. The theories of value and of the damages caused by the obstruction of the river and fixed by plaintiffs at $450,000, are purely fanciful, speculative and conjectural. It may be added that the plaintiffs did not discover the possibilities of value in river navigation for many years; and that the interruption of defendant’s train service would be serious if it were required to remove its present bridge.
A majority of the court recognize the fact that Croton river may in the future be made profitably navigable, and that defendant’s structure is unlawful; and further, that the claim of plaintiffs of present damage is of a chimerical and visionary character. It is not possible to look into the future and say that the ambitious plans of the plaintiffs will not come to fruition. It may be that later developments in manufacturing or commerce will include these lands in the manner contemplated. At present it is at best a hope or a prophecy, not forming the basis of substantial value or of resulting damage. The granting of the mandatory injunction sought could be of no benefit to the plaintiffs and would cause great harm to defendant.
We think that the proper solution is to award judgment determining that the river is in fact navigable; that the plaintiffs have the legal right of navigation; that the railroad has made an unlawful and continuing trespass by making its bridge rigid without color of legal authority; and that the plaintiffs have the right to maintain this action to abate the public nuisance, having suffered damages at the present time of nominal character but potentially more substantial in the future. These rights they have not lost either [137] through prescription or laches; but the damages that they may sustain in the future are too speculative and problematical to make an attempt to measure them at the present time wise or in the practical sense possible. Therefore, the rights of the plaintiffs should be declared, but a mandatory injunction denied at the present time as a matter of discretion, and the question of damages left for future consideration.
In reaching this conclusion we follow well-established authority in dealing with similar situations. (McCann v. Chasm Power Co., 211 N. Y. 301; Thompson v. Fort Miller Pulp & Paper Co., 195 App. Div. 271; Lyon v. Water Commissioners of Binghamton, 228 id. 585.) Courts of equity are not bound to grant a mandatory injunction to protect a trivial, technical or unsubstantial right where the result would be to impose an unwarranted burden on the trespasser. (Horton v. Niagara, Lockport & Ontario P. Co., 231 App. Div. 386.) We think that a sum should be awarded as present damages to cover the cost incurred by the plaintiffs in preparing their maps and other exhibits necessary to establish their rights (if susceptible of proof — otherwise nominal), but the granting of an injunction should be withheld; and that as the action was brought about by unjustifiable acts on the part of the defendant, it should be penalized with costs. (Wisconsin v. Illinois, 281 U. S. 179.)
The judgment should be reversed on the law and the facts, with costs, and judgment rendered in favor of the plaintiffs for damages to the extent indicated, with leave to the plaintiffs to apply at any time on the foot of the judgment, upon showing substantial injury from any cause to them hereafter occurring, for damages or for an injunction as the court may direct; or at their election the plaintiffs may bring a separate action for such other relief as they may be advised on account of any injury to their property and rights hereafter occurring.
Kapper and Carswell, JJ., concur; Tompkins, J., with whom Young, J., concurs, reads for reversal and the direction of a judgment for plaintiffs for the injunctive relief demanded in the complaint, unless defendant, within a time to be fixed by the court, shall pay to plaintiffs their damage in the sum of $450,000 in exchange for a proper deed or conveyance of an easement with respect to plaintiffs’ said lands, and permitting the maintenance by defendant of such bridge, and for the costs of this action.