People ex rel. Tibbits v. Canal Appraisers

The proprietors of islands, separated by a stream in which the tide does not ebb and flow, own respectively to the centre of the stream, unless the languageofthegrantsunder which the islands are held is such as clearly and unequivocally to show, that the intent of the parties was, that the grants should not extend beyond the water’s edge. Where the stream is navigable for either boats or rafts, the public have a right to use it for those purposes, and the rights of the adjoiningproprietors are subject to the public easement; but the state cannot divert the water of the stream, or interfere with it in any other manner which will render it less useful to the proprietors of the adjacent shores. If, in the improvement of a navigable-river by the state by the erection of a dam,a water-fall in a tributary stream not navigable, belonging to an individual, is overflowed and destroyed: such individual, within the meaning and spirit both of the constitution and the canallaws, is entitled to compensation for the injury sustained, equally as if his property had been taken for public use. Grants by the legislature of islands, in rivers and streams where the tide does not ebb and fioxo, although made during a long series of years, will not justify that the principle of the common law has not been adopted here, that grants of land bounded upon rivers or streams where the tide does not ebb or flow,carry the exclusiverights of the grantees to the middle of the stream ; or having been adopted, that it has ever been legally abrogated or exploded.

The relator claimed thatdam.iges shouldbe allowed to him by the canal appraisers for the destruction of a water-fall belonging to him, situate in the middle of the sprout Mohawk rtyer’ nearlY opposite the, junction of the Erie and Champlain canals, by the erection of a dam across the Hudson river, at the sloop lock between Troy and Lansingburgh. The appraisers refused to admit the claim, and on application to this court an alternative mandamus was issued, to which the appraisers made a return. On the coming in of which a peremptory mandamus was ordered, directing the appraisers to proceed and assess his damages. The appraisers sued out a writ of error, an d the courtforthe correction of errors re versed the ju figment of this court, on the ground that the relator had not shown title in himself to the locus ii, quo ; but leave was given to him to traverse the return, so as to give him an opportunity to prove his title. iSee 5 Wendell, p. 423 to 474, Issue was accordingly taken upon the return, which was brought to trial at the Albany circuit in March, 1832, before the Hon. James Vandebfoejl, one of the circuit judges. The relator claimed to be the owner of the middle sprout, by virtue of a conveyance of the lands under the waters of the sprout from the proprietor of the manor of Rensselaerwyck to Jacobus Yan Schoonhoven, from whom he derived title. He also claimed to be the owner of the middle sprout, usque filum aquae under a conveyance of Green island, the northern boundary of which forms the southern bank of the middle sprout • which conveyance was executed by a former proprietor of the manor to Peter Schuyler; from whom, by sundry mesne conveyances, the relator deduced title. To support his first ground of claim, he read in evidence letters patent of confirmation of the manor of Rensselaer-wyck, bearing date 20th May, 1704, granted by the then colonial government to Killian Van Rensselaer, and introduced testimony to show a practical or actual location under that grant, embracing Green Island&nd the other principle islands in the Hudson lying south of that Island, and north of the south boundary of the patent; and that the same had been held and occupied, under the manor of Rensselaer-wyck for nearly a century past. ’Theynemisescontcdmnginiheletterspatentofcojijirmationof the 20th May, 1704, are described as follows : “ All that and those tract and tracts of land called Renssalaer-wyck, lying and being in and upon the banks of Hudson’s river aforesaid in the county of Albany, in the province of New York aforesaid, theretofore called and known by the name'of ye colony of Rensselaer-wyck. Beginning at the south end or part of Berrien island, on Hudson’s river aforesaid, and extending northward up along both sides of ye said river, unto a place theretofore and yet called called the Kahoos, or Great Falls of ye said river, and extending itself east and west all along from each side of the said river, backwards into the woods twenty-four English miles. With all and singular the rights, members and appurtenances, &c. and with all and every the isles, islands, rivers, creeks, runs of water, mines, minerals,. (royal excepted) fishings, &c. and all other royalties, &c. to the said premises, or any part thereof belonging or appertaining.” In support of his second ground claim, the relator produced a deed from Killian Van Rensselaer (the grantee in the patent of confirmation) to Peter Schuyler,dated 10th May, 1708, conveying Green Island, and deduced title from the grantee in that deed to himself of the northerly half of that island. The relator also proved that Joseph D. Selden was a lessee of a mill site on the west sprout of the Mohawk river, under title derived from the proprietor of "the manor of Rensselaer-wyck, and that his mill site being destroyed by the construction of the Champlain canal, the legislature, by a special act passed 18th March, 1828, provided for the appointment of commissioners to assess his damages, and that such damages were subsequently assessed at $6376, and paid by the state. The relator further proved that the sprouts of the Mohawk are not navigable in ordinary seasons; that in the middle sprout there is a fall which, previous to the erection of the dam in the Hudson between Troy and Lansing-burgh, was about 12 feet 10 inches high, but is now covered by means of back water, in consequence of the dam so erected, to within 2 feet 10 inches. The defendants read in evidence letters .patent, bearing date 13th October, 1665, granting to Philip Peterse Schuyler and another an island (now known as Van Schaick’s isl- and) which lies directly north of the middle sprout of the Mohawk River, its southern boundary forming the northern bank of the sprout; which island is described in the letters patent as follows “ A certain island called by the Mahikanu Indians Quahemesicos, and commonly known by the name . J J oí long island, situate, lying and being between the second and third spring beyond and above the colony of Rensselaerwyck, near Albany.” They also produced letters patent of the same date to the same patentees of a tract of land called the Half-moon, described as lying to the north of the fourth spring beyond and above the colony of Rensselaer-wyck: which was confirmed by a patent of confirmation, bearing date 4th May, 1668, and in the same an additional grant was made of three small islands lying in the north river, “ over against said tract or parcel of land called the Half-moon.” The whole of which tracts were .subsequently confirmed to Anthony Van Schaick, by patent or confirmation bearing date 30th May, 1687. The defendants also proved that a line run east from the Kahoos falls, as a designation of the northern boundary of the manor of Rensselaer-wyck, would include within the manor Van Schaick’s island and a part of the patent of Half-moon ; that previous to the erection of the state dam on the Hudson, the tide ebbed and flowed 150 rods above the mouth of the sprout, and affected the sprout 6 or 8 inches up to the falls in question ; and it was admitted that there never had been a dam or other works erected on the middle sprout. The defendants contended that the principle of the common law,that the owners of the banks of streams and waters, where the tide does not ebb and flow, hold adfilum aquae, has never been adopted in this state; but that on the contraiy the government, as well before as since the revolution, have claimed and exercised the right of granting islands in rivers and streams where the tide does not ebb and flow, although the lands on the banks of those rivers and streams had been previously granted; and in support of this ground of defence, the defendants produced in evidence the following numerous letters patent and acts of the legislature, from the year 1668 down to the present day, viz.: Letters patent dated the eighth day of May, 1688, whereby the colonial government granted to Hilitye Cornelys, Great island in the Mohawk river, situate north of Albany—a patent of the colonial government, dated the ninth day of August, 1694, granting to Simon S. Groot an island in the Mohawk river, situated north of a point of Ryer Jacobson’s land, and to the southward of the island belonging to Jans Aersen. A patent of the colonial government, dated the 29th day of October, 1770,granting to William Fisher five islands in the Batten Kill river, in the following words: “All those five islands lying near each other in the Batten Kill river, in the county of Albany, which said islands are situate between lands granted to Alexander Turner and others, and lands granted to Ryer Schermerhom and others, near the house of James Moore, containing twenty-five acres.” It was proved, on the part of the defendants, by the proper patents,laws, grants, and documents, and by thetestimony of Simeon De Witt, the surveyor general, who had examined thepublic records for thepurpose, thatthepatent to Ry-er Schemerhom was granted in 1762, and to Alexander Turner, in 1764; Turner’s patent being on the north side andSchermerhorn’s on the south side of the creek, both bounded by it They also proved that the patents issuedfor lots in the military tract to soldiers of the revolutionary army, contain no description except the numbers of the lots; but that the survey and field notes in the surveyor general’s office do contain a description of the boundaries of the lots; where such lots are situated onnavigable rivers, they are bounded onthebank of suchrivers or streams, and run thence along the bank of such streams or rivers to the place of beginning, or to some specified place. That after such survey and allotments, and the issuing of the patents, the state-granted the islands opposite the said lots to other and distinct purchasers and grantees. That in the Seneca river, Flagg island, Middle island, lying opposite to No. 45, in the town of Brutus; Hickory and Meadow island and Depuy’s island, lying opposite to lot No. 86, and very near said lot were so granted. That the state caused to be surveyed and sold the island called Fort Brewerton, in the Onondaga river, lying opposite to lot No. 10, in Cicero. That by an act of the legislature, passed in the year 1808, the state granted to Ezra L’Hommedieu Magee’s island, situate in the same river, lying opposite to the lands held by him under a prior patent. That the state has conveyed and granted the following islands in the Oswego river: Broadstreet and Millstreet islands, Van Vollcenburgh’s Great island, lying opposite to lot No. 56, in Hannibal, also Little island, Lower Landing isl- and, Upper Landing island, Waterhouse island, Newkirk’s island, lying opposite his patent and near the lower end; al80 Oxcreek island in Oswego river, opposite to lot No. 19, in Lysander, the River Riff island, opposite to lot No 42, in the same town, after the lands on the main shore, opposite to which they are situated had been granted. That by separate patents, ten of which bear date the 13th September, 1791, and ten the 2d May, 1792, the state granted to Ezekiel Crocker twenty islands, situate in the Tiaughnioga branch of the Chenango river, in the county of Tioga, the first lying 430 chains below the first branch of the said river, and the other between that island and the said branch, which islands are opposite the Massachusetts ten townships. That by an act of the legislature, passed the 10th day of March, 1803, for the consideration of $50, the state granted to Solomon Smith all the right and title of the people of the state to an island situate in the Hudson river, in the town of Greenwich, in the county of Washington, lying opposite to the mouth of Stone Kill, at the north-west corner of Campbell’s patent, being one chain and twenty-five links from the east bank of the river, containing, by estimation, 23 acres of land. That islands in the Chenango river and a branch of it had since the revolution been granted by the state, long after the lands on each side of the river had been granted. That in the year 1794, the state, by letters patent, granted to Charles Anderson an island situated in the Chenango river, opposite to lots Nos. 96 and 97, in the township of Fayette, in the town of Oxford, after the last mentioned lots had been granted. That in pursuance of an act of the legislature, passed the 24th day of March, intheyear 1809, letters patent issued to Nathaniel Lock for a small island in the Chenango river, opposite to lot No. 91, in the town of Oxford; that the land on both sides of the river opposite the said island had been previously granted. That on the 6th October, in the year 1741, a patent was granted to Peter Winne for four tracts of land, the first of which is on the north side of Upper or West Canada Creek, about one and a half miles from its mouth; and also, all the small islands in the Mohawk river; from the upper end of the great falls there in the said river, below Burnet’s field, to the place where the Canada kill falls into the said river, and thence in the Canada kill, from the mouth thereof to the place where the first tract began ; that patents to the German settlers individually and separately for lands on both sides of the Mohawk river, from the Little Falls to the mouth of the Canada creek, and opposite the said islands granted to Peter Winne, and thence up along the said Canada creek to Winne’s first tract, and opposite the island patented to him, were granted the 30th April, 1725. A map of Burnet’s field, indicating the lands and islands granted to Peter Winne, and by the patents of 1825 from the surveyor general’s office, was produced and exhibited by the surveyor general ■ that the lands along the shore of the Niagara river were sold previously to the islands ; that Grand Island, and several small islands in the Niagara river, were sold by the state, after the lands opposite to them had been sold by the state; that the commissioners of the land office made a contract with Alexander Macomb for a tract extended along Lake Ontario and the St. Lawrence river, together with all the islands in the lake and the river opposite the main land, excepting the Isle Long Saut and Carleton’s Island, which two islands have since in part been sold by the state, and all the other islands have been granted to the assignees of Macomb. The defendants’ counsel also produced and read in evidence a patent to Henry Stilson, dated the 15th of April, 1771, for land described as follows: All the tract of land and ground under and covered with the water of Hudson river, in the county of Albany, within our province of New York, beginning on the west bank of the said, river at the division line between lot No. 7 and lot No. 8 in the 19th allotment of the partition of Kayaderosseras patent, and runs thence into the said river east three chains; thence parallel to the said bank of the said river, at three chains distance, south thirteen degrees east one chain and sixty links, and south thirty degrees east five chains and sixty links; then west three chains and forty-five links, to the bank of the river; and then along the said bank, as the same doth wind and turn northward, to the place of beginning; containing two acres. That a few years ago, the breaking of the dam, which crosses the river near the city of Troy, creaan island in the river, which has been claimed by the state, and leased by the commissioners of the land office. The defendants also produced and read in evidence an act passed the 17th of April, 1826, entitled “ An act confirming to David A. Ogden certain lands situate in a branch of the river St. Lawrencean act passed the 24th of April, 1823, entitled “ An act to authorize the erection of a dam across the Mohawk river at Utica, in the county of Oneida an act entitled “An act for the relief of John M’Donald, Archibald M’Intyre and Robert M’Qmeen,” passed the 15th April, 1817; an act entitled “An act for the relief of the legal representatives of John M’Donald, deceased, and Archibald M,Intyre,” passed 17th April, 1822 ; an act entitled “ An act authorizing Alexander Alexander to erect a dam across the Mohawk river, and for other purposes,” pasted 2d April, 1805 ; an act passed April 5th, 1803, granting unto Warren Ferris all that cert ainisl- and, situate in the Hudson river at the fall called Glen’s Falls; and an act of the legislature passed the day of authorizing the construction of a wing dam on the east side of the Hudson, at Fort Miller falls, for hydraulic purposes. The jury found a verdict for the relator. On the coming in of the postea, the counsel for the relator movedfor judgmentthatay;er OTCfwdamwi issue,directing the defendants to- proceed and assess the damages of the relator. The question was debated at great length by The arguments of counsel were' much the same as when this case was before court for the correction of errors, see 5 Wendell, pages 428 to 443, to which the reader is referred,as containing a very imperfect sketch of able and learned argumerits on a most interesting question. The reporter, however, conceives it his duty to add, that the attorney general, in the course of his argument in support of the position for which he and his associate contended, that the principle of the common law, assigning to the owners of the banks of of rivers, not navigable, the beds of the rivers ad filum aquae, had not been adopted in this state; or, that the state had claimed and exercised the prerogative right of reforming obstructions or annoyances existing to the free navigation of rivers, whether navigable or not—in addition to the instances cited on the former argument, and to those adduced in evidence on the trial of the issue, referred the court to the act of the legislature amending the uact for establishing and opening lock navigation within this state," passed 22d December, 1792. By the fifth section of which act, it is declared “ that all the land uner the water in the Mohawk river, which may be occupied by the corporation first above mentioned, (viz. the president, directors and company of the western inland lock navigation in the state of New York,) for the purpose of constructing any canal, lock, dyke, embankment or dam, for the improvement of the navigation thereof, shall be, and hereby is vested in the said corporation and its successors, &c. for and during the existence of the said corporation, and no longer, and for the purposes aforesaid, as a free gift from the people of this state; saving and reserving to the people of this state the right to all lands under the water, not so occupied as a fores aid, to be appropriated as the legislature shall from time to time direct; and thataK lands under the water in Hudson's river, which may in like manner be occupied by the said corporation last mentioned,<fcc. shall in like manner be vested in the said corporation, and for the like purposes, and under the like saving and reservation,as afreegiftfromthepeopleofthisstate." This act,the attorney general argued, was conclusive evidence of the assertion of title on the part of the state to the beds of rivers not navigable : the grant in the act in relation to the ^an<^s under water in the Hudson river, having reference by the terms of the act to the Hudson above tide water.* The reporter conceives it his duty also to add an argument, relied on by the counsel for the relator, not distinctly pUt forth, though referred to in the report of the argument in 5 Wendell, 441, viz, that allowing all rivers, fresh as well as salt, to he under two servitudes, or affected by them, as stated by Hale in his treatise de jure maris, viz, one of prerogative, belonging to the sovereign power of the state, and another of public interest, belonging to the people in general: still, it cannot be denied that it was competent to the sovereign pmoer to divest itself of such prerogative right by grant to an individual. And such grant, it was contended, was made in this case by the patent of confirmation of 1704. By it, not only the tract of land described in the patent was granted, but also “ all and every the isles, islands, rivers, creeks, runs of water, mines, minerals (royals excepted) and all other royalties, franchises, cfcc. and hereditaments whatsoever to the said premises belonging or appertainingand it was urged that the single exception of royal mines and minerals clearly denoted that all other royalties, franchises and prerogative rights are and were intended to be included in the grant.