44 N.Y.S. 1014 | N.Y. App. Div. | 1897
Three defenses were interposed to this action by the defendants, and the questions which they severally present are relied upon for a reversal of the judgment appealed from. Stated in the order in which we propose to consider them, these defenses are as follows, viz.: (1) That the defendants are entitled to float logs in the North Branch, as a right of way by necessity; (2) that the North Branch of the Moose river and Big SafEord creek are public highways, at common law, for the floating of logs and timber; (3) that the North Branch of Moose river has been declared a public highway by the statutes of this state.
The defendants’ first proposition is based upon the claim that Mrs. De Camp acquired title to part of the land over which the North Branch flows from the same source as Dr. Seward Webb, and that her deed was subsequent in point of time to the deed of Dr. Webb; that there is no other way at present for the defendants to market their lumber, except by floating their logs down the North Branch; and that, consequently, they are entitled to use that stream as a right of way by necessity. In examining the defendants’ elaborate brief, it is quite apparent that but little reliance is placed upon this first proposition, and probably no serious disappointment will result if the same fails to receive favorable consideration. It is sufficient, therefore, to say that, while it would undoubtedly be cheaper and far more convenient for the defendants to float their logs down the waters of the North Branch than to send them to their mill by some different method, it does not appear that there is no other means of getting them there. On the contrary, it is established by evidence which is undisputed that when the defendants bought this timber there was a' rail
It is undoubtedly a well-settled principle of law, and one which has for many centuries been incorporated into the common law of England, as well as of this country, from its earliest history, that freshwater streams which are nonnavigable, in the sense that they are not affected by the ebb and flow of the tide, belong to the riparian owners, subject, nevertheless, to a paramount right in the public to use the-same for the transportation of such craft or property as can be floated-upon their waters in their natural state. The distinctions between the rights of the public and those of individuals in fresh-water streams are clearly defined by Sir Matthew Hale in his De. Juri Maris,—a treatise upon this subject which has been invested by more recent writers with a quality of infallibility, and of which it was said by a learned commentator early in the present century that:
“The general distinctions, * * * which at tills day no lawyer will hazard his reputation by controverting, are that rivers not navigable (that is, fresh rivers of what kind soever) do, of common right, belong to the owners of the soil adjacent, to the extent of their land in length, but that rivers where the tide ebbs and flows belong, of common right, to the state. That this ownership of the citizen is of the whole river, viz. the soil and the water of the river, except that in his river, where boats, rafts, etc., may be floated to market, the public have a right of way or easement.” Ex parte Jennings, 6 Cow. 518. . See note, p. 543.
The principle thus enunciated has received frequent recognition, from the courts of this state, and must be regarded as controlling in this case. Palmer v. Mulligan, 3 Caines, 315; Shaw v. Crawford, 10 Johns. 237; Hooker v. Cummings, 20 Johns. 90; Browne v. Scofield, 8 Barb. 239; Morgan v. King, 35 N. Y. 459; Town of Pierrepont v. Loveless, 72 N. Y. 211. But it is to be observed that the easement which the public has in streams of this character is limited to their navigable capacity. If the waters in their natural condition are sufficient in capacity and quantity to accommodate rafts, then logs may be thus transported upon their surface; but, if insufficient for such a use, the logs may be floated singly or in quantities, as the casé may be. But, whatever use is made of the waters of such a stream, it must be one which is adapted to the stream in its natural condition, unaided by any artificial means. Moore v. Sanborne, 2 Mich. 526. What is the natural condition of such inland rivers as possess no historic consequence is a fact to be ascertained by proofs, and one oí which the courts cannot take judicial notice. Buffalo Pipe-Line Co. v. New York, etc., R. Co., 10 Abb. N. C. 107. In determining the question which we are now considering, it becomes necessary, therefore, to look somewhat into the facts of the case. The learned referee has found, upon evidence which clearly supports his findings, that the. North Branch of Moose river, from the east line of township 7 to its junction with the Middle Branch, is, except during the spring floods
“But, if any person at his own charge, makes his own private stream to be passable for boats or barges, either by making of locks or cutts, or drawing*1019 together other streams; and thereby that river, which was his own in point of propriety becomes now capable of carriage of vessels; yet this seems not to make it juris pubiici; and he may pull it down again, or apply it to his own private use. For it is not hereby made to be juris pubiici, unless it were done at a common charge; or by a public authority; or that by long continuance of time it hath been freely devoted to a publick use.”
We come now to consider the defendants’ third proposition, and the one in which they appear to repose the greatest confidence, viz. that the North Branch of the Moose river has been declared a public highway by the statutes of this state. As has already been shown, such is the plain language of the act of 1851, which doubtless was designed by the legislature to create a highway for the particular purposes therein indicated. Neither this act, nor the amendment of 1894, however, provides any compensation to owners for the lands taken for such highway, nor for the improvements in the bed of the stream which may become necessary before it can be used for highway purposes, as has been adjudged in a recent case to which these defendants were parties. In re Thomson, 86 Hun, 406, 33 N. Y. Supp. 467, affirmed 147 N. Y. 701, 42 N. E. 726. It must necessarily follow, therefore, that the act is in contravention of the fundamental law of the state, which provides that private property shall not be taken for public use without just compensation. Const, art. 1, § 6; Morgan v. King, supra; Chenango Bridge Co. v. Paige, 83 N. Y. 178. This much, we assume, will not be controverted by the defendants, who rest their contention upon quite a different basis. It seems that the original owner of townships 1 and 7 was one Alexander McComb, who derived his title from the state, in the year 1792, by letters patent, which contained the following reservation, viz.: “* * * Excepting and reserving to ourselves all gold and silver mines, and five acres of every hundred acres of said tract of land for highways.” When the defendants failed in their condemnation proceedings in Re Thomson, supra, they amended their answer herein by setting up the McComb patent as the source of the plaintiff’s title, and alleging that the North Branch of the Moose river does not cover 5 acres out of every 100 acres through which it passes in township 7. The learned referee found this to be the fact, and the contention now is that, in declaring the North Branch a public highway, the legislature intended to exercise the power which was reserved in the McComb patent, to erect highways upon the lands thereby conveyed. The argument in support of this contention is made to rest largely upon the question of legislative power; the claim being that, inasmuch as the power to use these five acres for highway purposes resided in the legislature, it must be assumed that that body intended to exercise such power when it enacted the statute of 1851. It may be admitted, for the purpose of this appeal, that the constitutionality of a given act generally involves the question of legislative power; but nevertheless the legislature may not have intended to avail itself of this power, and therefore, in giving construction to the act we are now considering, the element of intent is quite as likely to prove important and controlling
“The right of the state to take six acres out of every hundred acres sold is not an implied right, but an express reservation. These six acres were never paid for by the applicant. They were not any particular and specified or designated six acres, but they were thrown in, that, whenever the commonwealth thought a public road necessary through any part of the state, it might make it without interfering with the private right of any individual.”
This, it seems to us, is quite in harmony with the views to which we have attempted to give expression, and which may be thus briefly summarized, viz.: (1) That in and by the McComb patent the state did expressly reserve to itself, for highway purposes, 5 acres out of every 100 acres of land thereby conveyed; (2) that the land thus reserved was not specifically designated, but related to the entire tract; (3) that the power thus reserved authorized the state, at any time, to appropriate 5 per cent, of the land embraced in this tract to highway purposes; (4) that, in the absence of any language in the act of 1851 showing that such was the intent of the legislature, it will not be presumed that in declaring the North Branch of Moose river a highway for a particular purpose, without providing for compensation to riparian owners, there was any exercise of the power reserved by the McComb patent, at least until it is made to appear that such power has not already been exhausted.
There is another question arising in this case, to which but little attention has been devoted by counsel in their briefs, but which, it seems to us, is worthy of consideration. The act of 1851 declared the North Branch of Moose river a public highway, not for all purposes, nor for the public generally, but for the one, single purpose of floating logs and timber. It does not require an adept at reading between the lines to discover that this statute was evidently designed for the convenience of the individual owners of timber lands in the vicinity of this stream. If this be so, then it may well be doubted whether this attempted exercise by the legislature of the right of eminent domain possesses any validity;. for the land or water appropriated for the highway would in such a case be taken for a private, and not a public, use. Embury v. Conner, 3 N. Y. 511; In re Deansville Cemetery Ass’n, 66 N. Y. 569; In re Split Rock Cable Road Co., 128 N. Y. 408, 28 N. E. 506; In re Burns (opinion of Hardin, P. J.; not yet officially reported) 44 N. Y. Supp. 930. But we do not deem it necessary to express any opinion in regard to this question, inasmuch as we are satisfied that the case was correctly decided by the learned referee, and that the judgment appealed from must be affirmed. It is proper to add, however, that in reaching this conclusion we are not unmindful of its far-reaching consequences, nor are we oblivious to the
Judgment affirmed, with costs. All concur.