Misc.] Supreme Court, December, 1914. stituting said highway, covering it for its entire width and length. From that time to this the abutting owners have used the dock for dock purposes and the general public have used it for highway purposes, neither use excluding the other altogether, although doubtless interfering with it to some extent. Under these circumstances what became of the street when the dock was built? Can abutting owners destroy a street in this way? Did the construction of the dock annihilate the highway? There is no statute which gives it that effect, and according to the common law the street leaped from the ground to the dock and staid there. "When a private dock is built over a public street upon the shore of navigable waters, the dock becomes part of the street and the public has a right to travel over it. Ownership of the dock is not inconsistent with the existence of the street any more than ownership of the land over which the street extended. Assuming that the defendant or its predecessors could lawfully build a dock over their own land in order to reach the river, still, as their land was subject to the right of the public to travel upon it, they could not unreasonably interfere with that right nor with the existence of the street, which was the foundation thereof. Two rights co-existed. The defendant, as owner of the river front, had the right to reach the water. As there was a street along the river front over the defendant's land, the public had the right to use the street. The building of the dock changed neither right. Both continued to exist, although under changed conditions. They met but did not merge, nor did either destroy the other. The defendant had the right to use its dock, as a private dock, subject to the right of the public to travel over it, as they had previously traveled upon the land over which it was built. The city had no right to use the dock for dock pur Supreme Court, December, 1914. [Vol. 88. poses, but its citizens had the right to use it for street purposes. While the street followed the dock, and covered the whole of it, that did not authorize the city to collect wharfage; and although the dock was private property the same as the land beneath it, that did not authorize the defendant to prevent the public from using it for the same purpose that they had previously used the land. The easement for travel still existed, but it was over the dock which took the place of the land constituting the street. The public had the right to travel in the same place and in the same direction that they had before, but instead of traveling upon the surface of the land, they were obliged to travel and had the right to travel upon the structure that the defendant had placed on the land. That structure became a street for the purpose of travel and a private dock for use as such, with a superior right in the public in case of conflict through reasonable use of the respective rights." On the argument of the appeal before the Court of Appeals, the counsel for the city contended, as he and plaintiff's counsel now insist, that the existence of Front street along the margin of a navigable river gave to the public the right of wharfage in the docks, and counsel then cited in their brief used before the court the case of Barney v. Keokuk, 94 U. S. 324, and other kindred cases, as authority for their contention. The court, however, declined to follow it, and laid down the rule as enunciated in that portion of the opinion quoted. We must regard the doctrine as there enunciated to be the law of this case, and hold that neither the city of Buffalo nor the public in general acquired any right or rights in the docks or wharves in front of lots 74, 75, 76, 77 and 78, save the right to travel over or along the docks; and that they remained the private property of the upland owners. Such is the rule in this state, and was again laid down Mise.] Supreme Court, December, 1914. as the law in the case of Johnson v. Grenell, 188 N. Y. 407; 112 App. Div. 620, where it was held that where a highway was laid out on the margin of a navigable stream, and a lot was deeded by reference to a map showing that the lot abutted on the street, the conveyance of the lot carried with it the fee of the street itself, and the riparian rights in the waters adjacent thereto. To summarize, then, the situation, the only right, if any, the general public has in Front street, so-called, is the right to travel over and along it. To close this street will be depriving the public of no valuable or substantial right. It is not, and never has been, a thoroughfare in any proper sense. Communication from lower Main street to the eastern portion of the city never passed normally through Front street, but the travel was over and along Ohio street lying parallel to Front street and only a few feet to the north. Front street was, in fact, only of substantial service to the abutting property owners, and the shipping having the right to lie at the wharves. All the abutting property, as well as the fee of the street and the wharves, is now owned by the Lackawanna Railroad Company; so no private easement over this street is invaded by the closing of the street. We think it may be safely asserted that, in view of the limited easements and rights the public has in socalled Front street, nothing substantial is lost by the closing of the street. In the place and stead of the dilapidated docks now existing, substantial cement wharves are to be built, suitable for the proper accommodation of passengers and freight to be handled at this place. It has been urged that it was possible to have adopted a plan by which the entire proposed station and its approaches could have been moved sufficiently farther to the north so as to have obviated the neces Supreme Court, December, 1914. [Vol. 88. sity of closing Front street at all. Doubtless there exists no engineering difficulty in so doing; but, were this to be done, it would, in turn, involve the moving of Ohio street correspondingly farther to the north, which, in turn, would necessitate the appropriation of very valuable business property at a greatly enhanced cost in order to lay out the new Ohio street along such lines. At the same time, the evidence shows that such an arrangement would, to a corresponding degree, lessen the usefulness and value of the freight houses proposed to be built under the elevated train sheds. forming the approach to the passenger station, and offices fronting on Main street. Such a modification of the plan adopted could be carried out only at increased expense and disadvantage, without any corresponding advantage to the public. We have made these comments because it is asserted, on behalf of the plaintiff, that by adopting the plan it did the terminal commission had been guilty of such an abuse of discretion that the plan ought to be declared illegal and invalid for those reasons. If the court were at liberty to revise and modify the plans adopted, we should hesitate long in substituting the one suggested by the plaintiff for that finally adopted by the terminal commission. We discover no good or substantial reason for any such modification. In any event, it can be safely asserted that, considering all the circumstances, there was no abuse of discretion on the part of the commissioners, and there exists no good reason for disturbing their considerate judgment on the subject. Among the claims urged by the plaintiff is that the terminal commission had no right or authority to provide in its plans for facilities for accommodating lake transportation, business or lines. The evidence shows that the Lackawanna railroad does contemplate leasing to lake steamboat companies Misc.] Supreme Court, December, 1914. certain dockage privileges, and anticipates that certain lines operating on the Great Lakes will utilize the wharves and warehouses, to be erected by it, in their business; and it is contended by the plaintiff that the plan to be adopted and enforced by the terminal commission can only provide for adequate railroad facilities and services, as distinguished from transportation business done by water. We think, however, a brief recital of the facts will demonstrate that the contention of the plaintiff is not well founded. All the property upon which it is proposed to build the passenger station with its approaches is already owned in fee by the railroad company, saving possibly some small outstanding interest in third parties. The train shed, with its tracks and approaches are to be built upon an elevated structure. It is proposed to utilize the space beneath the train sheds for the purpose of receiving, storing and handling express matter and other freight. Some of this freight will be brought to the warehouse beneath destined for shipment to points west by vessel. Other freight will be received from lake lines from the west destined for transportation east by the railroad. The Lackawanna is interested in steamboat lines engaged in this class of business. The same is true also of a large passenger business, and many persons traveling to Buffalo by water, or going west in the same way, transfer from boat to train, and vice versa, at this point. The plans adopted anticipate doing a large amount of this exchange business in both freight and passengers. Not all the freight so arriving will be through business, nor will all passengers be through passengers. Some of each will stop at Buffalo, and some will doubtless go east by other railroads having their termini in this city. The warehouses to be constructed under the train sheds are designed to furnish facilities for the |