opinion that the judgment cannot stand because of the clear contributory negligence on the part of the deceased. She was walking toward the coming brilliantly lighted car. Her husband testifies that he heard a whistle; but, whether the whistle sounded or not, she was bound to look, and to observe that a car was approaching upon the track which she was about to cross. The presumption is that she did look, for it was something she could not help but see. Plaintiff's counsel urges that the light was so bright that it blinded her, and that it was impossible because of its brightness for her to estimate its distance from her. These suggestions present no excuse. Had she only been injured, and not killed, and had she testified that she looked, as the law compelled her to do, and did not see the light and the car, her testimony would have been deemed incredible as matter of law, and she must necessarily have been held guilty of contributory negligence in failing to exercise ordinary caution. Dolfini v. Erie Railroad Co., 178 N. Y. 1, 70 N. E. 68.

The plaintiff, a resident of the state of New York, was appointed administrator of the deceased on the ground that she, although a resident of the state of New Jersey, left property within the county of New York, consisting of a deposit in a savings bank to the credit of herself and her husband, "or either." On her death the husband drew out about one half the amount, and on the trial testified that the other half belonged to his deceased wife. We are not prepared to say, upon his testimony and the form of the deposit, that none of the moneys belonged to the deceased, and that, therefore, the Surrogate's Court had no jurisdiction to appoint the plaintiff administrator of her estate.

The accident occurred in the state of New Jersey, and the defendant is a corporation organized under the laws of that state. The decedent and her husband and children were residents there. All the witnesses to the accident on both sides had to be imported to this state. In view of the pressure of business upon the courts of New York City, although the plaintiff may have had a technical right to bring the action here, it would seem that the trial should have been had in the other state.

In any event, the verdict was against the weight of evidence as to lack of contributing negligence on the part of the deceased, and the judgment and order must be reversed, and a new trial granted, with costs to the appellant to abide the event.

PATTERSON, P. J., concurs.

INGRAHAM, J. I concur with Mr. Justice HOUGHTON in the view that the deceased was guilty of contributory negligence; but I think this is a case in which the court should decline to take jurisdiction of the cause of action sued on for the reason stated in Ferguson v. Neilson, 58 Hun, 604, 11 N. Y. Supp. 524, Wertheim v. Clergue, 53 App. Div. 124, 65 N. Y. Supp. 750, and Collard v. Beach, 81 App. Div. 582, 81 N. Y. Supp. 619. In each of these cases the court had jurisdiction of the cause of action and of the parties, but declined to exercise it on the ground that the action was to recover for a tort committed in a foreign state, where both parties to the action were residents of

that state. In this case the defendant was a foreign corporation having no business in this state, and over which the courts of this state have no jurisdiction. The deceased was a resident of that state, and her husband and next of kin, for whose benefit the action was brought, are also residents of that state. The plaintiff, who is a resident of this state, has obtained letters of administration upon the ground that the deceased had property in this state-a proposition which is doubtful, but which I assume we cannot consider on this appeal.

In this state by sections 1902, 1903, of the Code of Civil Procedure an executor or administrator may maintain an action to recover damages for a wrongful act by which the decedent's death was caused against a natural person who or a corporation which would have been liable to an action in favor of the decedent by reason thereof if death had not ensued; but the damages recovered in such an action are exclusively for the benefit of the decedent's husband or wife and next of kin, and when they are collected they must be distributed by the plaintiff as if they were unbequeathed assets left in his hands after payment of all debts and expenses of administration, and the complaint alleges that there is a like statute in New Jersey. It is however the statute of the state of New Jersey that gives the cause of action, and the action is thus brought to enforce the law of New Jersey, for the exclusive benefit of citizens of New Jersey, against a New Jersey corporation, for a tort committed in the state of New Jersey. If death had not ensued as the result of this accident, the courts of this state would have had no jurisdiction to determine whether or not the defendant was liable for the accident; and if the cause of action was given to the persons for whose benefit it could be brought the court would have had no jurisdiction. The New Jersey statute gives a cause of action to a New Jersey administrator of the decedent; but this plaintiff is not a New Jersey administrator, he having been appointed by the surrogate of this county only. The laws of this state also give such a cause of action; but it is to recover for an injury causing death in this state, and solely for the benefit of the husband or wife and next of kin of the decedent. The plaintiff, who has no authority from the state of New Jersey to sue, brought this action to enforce the law of New Jersey, and the right of the husband and next of kin to recover the damages which they have sustained by reason of the alleged wrongful act.

No resident of this state had the slightest interest in this controversy, and certainly the objection to the courts of this state concerning themselves with controversies between nonresidents applies with much greater force where the courts of this state would have no jurisdiction but for the fact that by reason of there being a small amount of personal property in this state an administrator is appointed to administer such personal property. If, technically speaking, the Supreme Court of the state of New York had jurisdiction of the action, the plaintiff being a resident, the courts are not bound to exercise the jurisdiction where those solely benefited are nonresidents, and where no reason exists why the liability cannot be enforced in the state where the parties

state has no extraterritorial force and the provisions of the Code of Civil Procedure to which I have referred would not give to the plaintiff or to individuals a cause of action for a death caused by negligence in the state of New Jersey, but resort must be had to the laws of that state to determine whether or not a cause of action exists. While the courts of this state have taken jurisdiction to protect its own citizens where injury has been occasioned by the negligence of a nonresident, either individual or corporation, there is no reason for accepting jurisdiction where all those interested are nonresidents, where the accident happened in another state, and where, but for the fact that the decedent left a small proportion of property in this state, the courts of this state would have had no jurisdiction.

I am therefore in favor of reversing this judgment upon the ground that, if the courts of this state have jurisdiction because of the residence of the plaintiff, the administrator of the decedent, they will refuse to exercise that jurisdiction, and the judgment should therefore be reversed, and the complaint dismissed.

(Court of Claims of New York. January, 1909.)

1 PUBLIC LANDS (§ 188*)-Crown GrantS-EXCEPTION IN GRANT. Wood creek was a part of the ordinary route of travel between the Hudson river and Lake Champlain by the Indians and the colonists, and in a patent from the crown to S. was excepted "as a common highway for the benefit of the public." S. was attainted for treason in 1779 by the New York Legislature, and his lands were forfeited and sold. Held, that those claiming under the S. patent have no interest in the bed of Wood creek; such exception being a dedication of the creek to the public.

[Ed. Note. For other cases, see Public Lands, Cent. Dig. § 604; Dec. Dig. § 188.*]

2. EMINENT DOMAIN (§ 93*)—SPECULATIVE DAMAGES.

Where the state has taken adjacent lands for canal purposes, it cannot be compelled by the court to take additional lands which may be flooded, if the high navigable stage of the canal should ever be reached; and such lands not being necessary for ordinary use, and the flooding being only a possibility, the possible damage to them will not be considered in fixing the award for the lands taken.

[Ed. Note. For other cases, seé Eminent Domain, Cent. Dig. § 237; Dec. Dig. § 93.*]

8. NAVIGABLE WATERS (§ 39*) — RIGHTS OF RIPARIAN OWNERS - IMPROVEMENT FOR NAVIGATION.

The rights of owners of land bordering on a navigable river must yield to the powers of the government on improvements of the same for purposes of navigation, whether exercised by the federal or the state government. [Ed. Note. For other cases, see Navigable Waters, Cent. Dig. §§ 21, 82, 103, 117, 127, 241-244; Dec. Dig. § 39.*]

Claim of Jane B. Johnson against the State of New York for compensation for the appropriation of water privileges and riparian rights

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

in a certain stream. Judgment for claimant for a portion of her demand.

Northrup R. Holmes, for claimant.

George P. Decker, Deputy Atty. Gen., for the State.

MURRAY, J. For the purpose of acquiring land for what is commonly known as the "new barge canal," the state through its authorized officer and pursuant to law, on or about the 26th day of October, 1906, served upon the claimant the usual map and notice of appropriation, wherein the property sought to be appropriated is described as follows:

All that piece or parcel of land "situated, lying, and being in the town of Whitehall, county of Washington, and state of New York, as shown in the accompanying map and described as follows: Beginning at an iron pipe in the property line between the land of Jane Johnson and the land of Jeremiah Brown, said iron pipe being N. 57° 19′ W. 305.07 ft. from Stra 128+00 of the center line of the improved Champlain Canal; thence along the land of Jane Johnson N. 18° 22′ 30′′ E. 264.58 ft. to the low-water line on the south bank of Wood creek; thence easterly and southerly along said low-water line to the intersection with the said property line separating the lands of Jane Johnson from the lands of Jeremiah Brown; thence along said property line N. 84° 08′ W. 610.31 ft. to the place of beginning-said low-water line being determined by offsets from a base line as shown in the accompanying map, containing 6.56 acres more or less; also all the right, title, and interest of the said reputed owner in the lands in the bed of said stream, and also all of her right, title, and interest as riparian owner."

In this case the claimant contends she is entitled to compensation from the state for the appropriation of her water privileges and of riparian rights in and to the bed of Wood creek. Counsel for the claimant lays stress upon that part of the notice of appropriation which specifies "all of the right, title, and interest of the said reputed owner in the bed of said stream," and her right as riparian owner. I take it, however, that, no matter what the wording of the notice may be, if the claimant is not the owner, she is not entitled to compensation from the state for property she does not possess. The wording of the notice of appropriation quoted could not give the claimant title to property she did not own.

The notice seeks to appropriate her right as "reputed owner" in the lands in the bed of said stream. The allegations of the claim are taken as denied by the state by our rules of practice. Therefore it is the duty of the court to ascertain what is her right as reputed owner in the bed of said stream, to ascertain and fix what compensation, if any, the claimant is entitled to. The determining of the amount of compensation embraces the question of the amount of land taken, and the land taken involves the question of ownership. to it. Hence the first question discussed will be: Is the claimant the owner of the bed of said stream and of such privileges and rights?

The land sought to be appropriated by the state is a portion of the claimant's farm, which lies in the township of Whitehall. This farm was part of a large tract of land which was originally granted to one Philip Skene and others by crown patent of the colony, dated

the center of it ran Wood creek; the land being described as being on both sides of Wood creek. In this patent there are several exceptions, among which is, "excepting the said Wood creek, which is reserved as a common highway for the benefit of the public;" and, again, "also except Wood creek as aforesaid for a common and public highway." The certificate of survey contains a similar reservation of Wood creek, and the map made by the colonial surveyor general shows the colonial line of boundary running along the west side of Wood creek at one point.

Prof. Farrand, in his chapter on Indian Trails and Waterways (The American Nation, vol. 2, p. 28), states that the routes of travel between the Hudson and Lake Champlain were known as the "Grand Passes," and says:

"Still another route between the Hudson and Lake Champlain was from Ft.. Edward northeast over a portage to Wood creek and down that stream to the lake."

Further historical research shows that this line of travel by way of Wood creek, between the Hudson and Lake Champlain, was recognized from the earliest time. Wood creek was used by the Indians before the coming of the colonists, and was used by the colonists during the colonial period. The exception of Wood creek, as a common and public highway, in the crown patent to Skene, viewed in the light of the then existing conditions, is of peculiar significance. I believe that the exception was intended to recognize Wood creek as part of a well-defined and well-known route of travel between the Hudson and Lake Champlain; that it considered the waters of Wood creek as navigable, and as being used for public transportation; that it amounted to a dedication of the creek and the navigability of its waters to the people, and was a confirmation of the then existing right of the people to use the navigable portion of said creek as a means of public travel. In the Revolutionary War Skene sided with the crown, and by act of the Legislature, passed October 22, 1779 (Laws 1779, p. 26, c. 25), he was attainted of treason. This act also declared his estate should be forfeited to the people of the state.

From this brief résumé, it will be seen that from time immemorial Wood creek was part of a traveled route; that the claimant's original predecessor in title never had title to the bed of Wood creek; but that it was expressly reserved to the public as a highway for a route of travel between the Hudson and Lake Champlain. In the act of attainder referred to it provided for the appointment of commissioners, with authority to sell and convey the estates of the persons which had been declared forfeited. Section 25 of this act, prescribing the form of the deed which the commissioners should execute, provided the deed should contain the following recital:

"All and singular the estate, right, title, and interest in and to the said premises, which in consequence of any conviction or attainder has become forfeited or vested in and to the said estate."

The portion of the Skene lands which embraced the claimant's farm was sold by these commissioners under this act to one John Williams. These commissioners undoubtedly intended to preserve