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8. NAVIGABLE WATERS ($ 37*)—RIGHT TO GRANT LANDS UNDER WATERS—"NAV

IGABLE RIVERS.”

Laws 1786, p. 334, c. 67, permitting the commissioners of the land office to grant land under “navigable rivers" as they might deem necessary to promote the commerce of the state, provided the grant should be made to the adjacent owner, is only applicable to a tidal stream and does not extend to a nontidal stream, though in fact navigable.

[Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. $$ 201

227 ; Dec. Dig. $ 37.*] 9. PUBLIC LANDS ($ 163*)—PATENTS-CONSTRUCTION.

It was not usual and is not customary in grants by the state to include the acreage of an adjoining stream as a part of the acreage of the land conveyed.

(Ed. Note.-For other cases, see Public Lands, Dec. Dig. 8 163.*] 10. EMINENT DOMAIN (8 84*)-RIGHT TO TAKE WATER WITHOUT COMPENSA

TION.

Where the state owns the bed of a river and its water, it can abstract the water for canal purposes without compensation.

(Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. $ 227;

Dec. Dig. 8 84.*] 11. BOUNDARIES (8 13*)-BOUNDARIES ON WATER COURSES.

Where land is bounded by or on a nontidal stream, the presumption is that the title extends to the center of the stream, and this presumption exists even against the state, where the conveyance is for a consideration, and there is nothing to indicate that the state intended to except the bed of the stream.

[Ed. Note.-For other cases, see Boundaries, Cent. Dig. 88 95-101;

Dec. Dig. § 13.*] 12. BOUNDARIES (8 13*)--BOUNDARIES ON WATER COURSES-CONSTRUCTION.

In construing the conveyance of land upon a stream or body of water, more liberality must be allowed in interpreting the language of the conveyance because of the difficulty of locating the bounds of such land except by marks upon the shore of the stream, and as ordinarily no monument can be placed in the center of the stream.

[Ed. Note.--For other cases, see Boundaries, Cent. Dig. 88 95–101 ;

Dec. Dig. § 13.*] 13. BOUNDARIES (8 15*)—CONSTRUCTION.

A description in a grant by the state beginning at a sapling standing on the shore of the Oswego river and, after giving several courses, running back to the river, and then up along the same, to the place of beginning, carries title to the center of the river.

[Ed. Note.-For other cases, see Boundaries, Cent. Dig. 88 108-117;

Dec. Dig. & 15.*] 14. ADVERSE Possession ($ 7*)-LANDS OF STATE.

Title may be acquired to lands under the water in a navigable river as against the state by adverse possession after a period of 40 years, and where within that period it has not received rents or profits.

(Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. 88 24

42; Dec. Dig. $ 7.*] 13. NAVIGABLE WATERS ($ 44*)-RIGHT TO ACCRETION.

Whether or not the title of a riparian owner stands to the center of a stream, it being a nontidal, nonboundary stream, any land which may have been reclaimed from the bed of the river on its becoming lower may be occupied by him so long as he does not interfere with the improvement of the river for navigation.

(Ed. Note.-For other cases, see Navigable Waters. Cent. Dig. $8 266282; Dec. Dig. & 44.*]

For other cases seo same topic & $ NUMBER ID Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Claim by the Fulton Light, Heat & Power Company and another against the State for damages to property situated on the Oswego river taken by the State for a canal. Finding for claimants that they were the owners in fee of the land sought to be condemned and of the riparian rights attached thereto.

Hugo Hirsh (Charles A. Collin, John P. Wells, W. D. Gaillard, G. C. Warner, Geo. J. Gillespie, N. R. Holmes, F. B. Hunt, James T. Clark, and R. H. Goldsborough, of counsel), for claimants.

George P. Decker, Deputy Atty. Gen., and M. H. Quirk, Asst. Atty. Gen., for the State.

RODENBECK, J. This is a proceeding taken by the state to acquire title to certain property alleged to be owned by the claimants situated on the Oswego river at the city of Fulton. Part of the property is located at the east end of what is known as the “State Dam at Fulton," a dam constructed for furnishing a supply of water to the Oswego canal; and other portions of the property are located northerly therefrom, but bordering upon the Oswego river. The so-called power plant property is used by the claimants as a power station for the development of electricity for which it finds a market in the city of Fulton and elsewhere. It uses as a means for developing electricity part of the time the water of the Oswego river, which is held back at this point by the dam above mentioned constructed by the state in connection with the Oswego Canal. This canal was completed about the year 1826 and opened into the Oswego river at the dam in question; the backwater of the dam furnishing a supply for the operation of the canal. In 1857 the state improved the Oswego Canal by extending it southerly from the said State Dam. Since the original construction of the canal in 1826, the state has continued, down to the present time, to operate it as a part of the canal system of the state, and now proposes to improve it still further by the construction of an enlarged canal. This canal is being constructed along the margin of the Oswego river at the point in question, and to acquire the property necessary the state has served notice of appropriation upon the claimants. Three notices have been served, affecting three separate parcels of land owned by them. One is known as the power plant station, and is located at the dam; another is called the Kenyon Mills property, and is a short distance north from the power plant station; and the third is the Genesee Mills property located still farther north. In two of these notices, the state not only describes the land which it deems necessary, but provides for the taking of the riparian rights of the owners. The state now challenges the ownership of the claimants, not only of the riparian rights which it specified, but of the land itself which it specifically describes. The position of the state in a general way, so far as the title of the claimants is concerned, is: That the original patent of the land on the Oswego river at this point does not extend to the center of the river; that the claimants have no land or riparian rights with which the state is interfering; and that, if this position is incorrect

,

quired by the state in the course of the construction of the Oswego Canal, and there is nothing to appropriate. This main contention and its subordinate propositions have been so earnestly and industriously urged by the learned Deputy Attorney General that it has been deemed necessary to examine at considerable length the various arguments advanced in support of his position.

At the very outset of the case, the proposition was urged that the usual rules for the interpretation of a conveyance between individuals, where the conveyance was of property on the bank of a water course, did not apply to the state, and that all patents by the state must be construed favorably to the state. It was argued that the usual presumption of ownership to the middle of a nontidal stream, which applies in the case of a conveyance by an individual, did not extend to the state, and that no riparian rights were attached to a patent of upland made by the state, unless they were in express terms included in the language of the patent. It is necessary to consider this preliminary proposition before undertaking to interpret the language of the patent through which claimants derived their title. In examining this question it must be borne in mind that the general rule is that the state is to be governed in its controversies in court by the same principles of law that apply as between individuals. The state cannot be sued without its consent, and it has imposed certain limitations upon its right to be sued; but when it is fairly in court it is to be judged by the same rules which it has laid down for the settlement of disputes in court between its own citizens. People v. Canal Board, 55 N. Y. 395; People v. Stephens, 71 N. Y. 537. The general rule for the construction of grants by the state, where there is a valuable consideration, does not differ from that which applies to grants by individuals. Certain grants by the state are construed strictly against the grantee, but this rule does not apply to grants of real estate by the state where there is a consideration.

The construction of state grants is discussed in Langdon v. Mayor, 93 N. Y. 148, where, after discussing various cases on the subject, Judge Earl says:

“We have thus suficiently referred to authorities as to the rule for the construction of public grants. It will be seen that the common law is recognized in this country, which requires all grants by the sovereign of exclusive privileges and franchises and all gratuitous grants of land should be strictly construed against the grantee, but that the same strict rule of construction should not be applied to grants of land made for a valuable and adequate consideration paid or agreed to be paid by the grantee."

Where the grant is in the nature of a patent of land by the state given for military services, there is an adequate consideration for the grant, and the rule above laid down applies. Such a patent is not only a grant of real property, which would take it out of the exception to the general rule above mentioned, but it is based upon a sufficient consideration so that it is to be construed the same as if it were a grant between individuals. It is in no sense a grant of an exclusive privilege and franchise, or a gratuitous grant, or a grant of rights which are vested in the public at large, and is therefore to be construed against the state rather than against the grantee. Rights which

the state holds in trust for the public use, such as the supervision of public highways and the control of navigable waters, are inalienable; but lands owned by the state bordering upon a stream or land under the water of a stream, whether it is a tide-water stream or not, is a mere right of property and not a prerogative of the sovereign, and can be disposed of by the state as if owned by an individual, according to the laws relating thereto, and when transferred the grant is to be construed like any other conveyance of real property. In deciding this case therefore the state is governed by the same rules of law as would apply were the contest one between individuals, instead of a controversy in which the state is involved as a party. Varick v. Smith, 5 Paige, 136, 28 Am. Dec. 417 (1835); Id., 9 Paige, 558 (1812); Van Buren v. Baker, 12 N. Y. St. Rep. 211; Gere v. McChesney, 84 App. Div. 40, 82 N. Y. Supp. 191.

The foregoing relates to the general rules applicable in the courts where the state is a party, and there still remains the inquiry as to what specific rules of interpretation apply to the conveyance to the claimants and their predecessors, in determining whether or not their title extends to the center of the Oswego river. In determining this question as applicable to this case, it should be noted at the outset that the decisions of other states upon this point are of little value, for each jurisdiction is a law unto itself as to the rights of riparian owners, and the different state courts have not ruled consistently upon this phase of the case. The United States Supreme Court has held that, with regard to grants by the government of land bordering on tide water, the title to the shore and land under water in front of land so granted inures to the state within which they are situated, but that the extent to which this prerogative of the state over land under water of such a stream extends depends upon the law of each state. Hardin v. Jordan, 140 U. S. 381, 11 Sup. Ct. 808, 35 L. Ed. 428. All of the parties concerned in this case concede that, so far as tide water is concerned, the title of a grant of land upon the shore extends only to high-water mark; but it is contended by the learned Deputy Attorney General that the common-law rule which carries the title of a grant on a nontidal stream to the center of the stream does not apply in this state, but that the question as to the interpretation of such a grant must be decided by the size and usage of the stream.

The rule which he invokes would be a rather uncertain guide for interpreting the title to land under water and would require the reversal of the settled law of the state. The decisions of the courts upon this question in the early history of the state are not entirely consistent, and the common-law rule which prevailed in England was not always adhered to; but the current of decisions in recent years has been uniform in adopting the common-law rule, with but a single exception, relating to streams or bodies of water which form boundaries between the state and other states or countries. It has been uniformly held that grants of land on the Hudson river, which is a tide-water stream, in the absence of express language covering the bed of the stream, carried the title only to high-water mark, and that the bed of

Mulligan, 3 Caines, 307, 2 Am. Dec. 270; Gould v. H. R. R. R. Co., 6 N. Y. 522; People v. Tibbetts, 19 N. Y. 523; Mayor v. Starin, 106 N. Y. 19, 12 N. E. 631; Langdon v. Mayor, 93 N. Y. 145; Sage v. Mayor, 154 N. Y. 79, 47 N. E. 1096, 38 L. R. A. 606, 61 Am. St. Rep. 592 ; Knickerbocker Ice Co. v. Shultz, 116 N. Y. 388, 22 N. E. 564; Rumsey v. N. Y. & N. E. R. R. Co., 114 N. Y. 427, 21 N. E. 1066. The same doctrine has been applied to Great South Bay, where the tide ebbs and flows (People ex rel. Howell v. Jessup, 160 N. Y. 260, 54 N. E. 682), and to the Connecticut river, a tidal stream (Smith v. Bartlett, 180 N. Y. 365, 73 N. E. 63).

The first cases interpreting grants on tide-water streams held that the owner of the land bordering on the stream had title to high-water mark, and that he had no claim even to a right of access to the stream (Gould v. H. R. R. R. Co., 6 N. Y. 522); but later cases changed this. rule and extended the right of riparian owners upon tide waters farther than the common-law rule in such cases. The doctrine laid down in the Gould Case was overruled in Rumsey v. N. Y. & N. E. R. R. Co., 114 N. Y. 427, 21 N. E. 1066, which held that a riparian owner on the Hudson river, a tidal stream, had a right of access to the stream which could not be cut off without making compensation to him; and in the cases of People ex rel. Howell v. Jessup, 160 N. Y. 260, 54 N. E. 682, and Town of Brookhaven v. Smith, 188 N. Y. 74, 80 N. E. 665, 9 L. R. A. (N. S.) 326, the rights of riparian owners on tide waters were still farther extended. These cases show that the courts have not followed strictly the common-law rule as to tidal streams, but that in the case of tide waters they have extended rather than narrowed the rights of riparian owners; so that it may be said to be the law of this state that the rights of the owner of the land bounding a tidal stream include not only a "right of access to the navigable part of the river in front of riparian lands for the purpose of loading boats, drawing nets and the like" (Sage v. Mayor, 154 N. Y. 61, 47 N. E. 1096, 38 L. R. A. 606, 61 Am. St. Rep. 592), but the right to erect and use a suitable wharf or pier from his land into the water, provided he does not interfere with public navigation (Town of Brookhaven v. Smith, 188 N. Y. 74, 80 N. E. 665, 9 L. R. A. (N. S.] 326). In the case of nontidal streams the common-law rule was that the owner of the land on the stream of common right had the title to the bed of the stream to its center. This rule has been adhered to in recent years by the courts, with a single exception relating to boundary streams or bodies of water. In the following cases the effect of the rule has been accomplished, whether the result was attained by a construction based upon the common-law right of ownership, or upon the presumption arising from a grant, or from the interpretation of the language of the grant itself: Commissioners v. Kempshall, 26 Wend. 404; Varick v. Smith, 5 Paige, 136, 28 Am. Dec. 417; Id., 9 Paige, 517; Chenango Bridge Co. v. Paige, 83 N. Y. 178, 38 Am. Rep. 407; Smith v. City of Rochester, 92 N. Y. 463, 44 Am. Rep. 393; Gouverneur v. National Ice Co., 134 N. Y. 355, 31 N. E. 865, 18 L. R. A. 695, 30 Am. St. Rep. 669; Waller v. State, 144 N. Y. 579, 39 N. E. 680; Neal v. City of Rochester, 156 N. Y. 213, 50 N. E. 803.

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