116 N.Y.S. 1000 | New York Court of Claims | 1909
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 I'niton. 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 back water of the dam furnishing a supply for tbc 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 pro
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 ex
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. 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
The rule which he invokes would be a rather uncertain guide for intepreting 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 the river remained in the State until expressly granted. Palmer v. Mulligan, 3 Caines, 307; Gould v. H. R. R. R. Co., 6 N. Y. 522; People v. Tibbetts, 19 id. 523; Mayor v. Starin, 106 id. 19; Langdon v. Mayor, 93 id. 145; Sage v. Mayor, 154 id. 79; Knickerbocker Ice Co. v. Shultz, 116 id. 388; Rumsey v. N. Y. & N. E. R. R. Co., 114 id. 427. 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), and to the Connecticut river, a tidal steam. Smith v. Bartlett, 180 N. Y. 365. 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, which held that a riparian owner on the Hudson river, a tidal stream, had a right of access to the stream
In examining the cases, confusion will result, unless it is borne in mind that the term “ navigable,” at common law and in a legal sense, means a stream where the tide ebbs and flows; and it must always be kept in mind that, whatever may be the rights of the owner of the upland in the bed of a navigable stream, whether the term “navigable ” be used in its legal sense or as used in common speech, these rights are always subject to the paramount right of the State and the Federal government to improve navigation and regulate commerce. We have nothing to do in this case with the rule applicable to tide water streams, for it is conceded that the Oswego is not a tide water stream. It is not a boundary stream, so that it does not come within the exception to the common-law rule above noted. Being neither a tide water nor a boundary stream, it falls in the category of those streams a grant of land on the shore of which is presumed to carry title to the center of the stream. In determining this case, therefore, there may be eliminated all consideration of cases applicable to tide water and boundary streams, and recourse must be had to authorities touching other streams and watercourses. The fact that this river is quite a large one and is capable of furnishing at the point in question considerable water power does not change the rule; nor is the rule affected by the fact that the Oswego river may in certain portions of it be a navigable stream in fact, for
The riparian rights of the owner of the upland on a tide water stream, or on a nontidal stream which is navigable in fact, is subject to the paramount right of the State and Federal governments to improve navigation and regulate commerce; and, as the learned Deputy Attorney-General claims in this case that the construction of the barge canal is to he construed as an improvement of the Oswego river within the reserved power of the State, it becomes necessary to "pass upon this point before taking up the interpretation of the patent under which the claimants hold title; because, if this contention is correct, it is immaterial whether claimants own to the center of the river or not. This position of the State, however, is not a tenable one, as the construction of the barge canal at this point is something entirely apart from the Oswego river, except as it may be necessary to obtain from it an additional supply of water. It is not being built in the river and is a separate enterprise to be judged upon the same basis, so far as affecting private rights are concerned, as if it were an enterprise of a private corporation. On the plea of its sovereign right to improve navigation, the State cannot abstract water from the Oswego river for an entirely independent venture. There is no doubt but that the State might improve a stream navigable in fact by deepening its channel or removing obstructions, even those placed there by the owner of the bed of the stream; but upon the plea of improving navigation, and without interfering with the bed of the river at all, it cannot abstract water which it does not now own from the Oswego river and divert it from its natural channel to the injury of those owning riparian rights. In the construction of the Erie canal, the State was held liable to make compensation for any land or water taken by it, except such water as was actually controlled ' by the State. Even if the State had riparian rights by reason of ownership of land upon the shore of the stream, it would not thereby secure the right to abstract water and thus injure other riparian owners. The State stands in the same sitúa-
The same principle is applied in Smith v. City of Rochester, 92 N. Y. 484. Beidler v. Sanitary District, 211 Ill. 628.
Before proceeding to interpret the patent granted by the State in this instance, it is necessary to examine another question raised by the State, namely, whether or not the land proposed to be taken was appropriated by the State for the Oswego canal at the time of its original construction or at the
Another question raised by the learned Deputy Attorney-General, which will require discussion before taking up the construction of the State’s patent, is that with reference to the exception by the State of the portage around Oswego falls. It is claimed by the State that this portage extended from a point considerably south of the premises in question to "a point northerly therefrom, thus including the land appropriated. On the testimony of oral witnesses it appears that there existed a portage on the east bank of the Oswego river -from above the Oswego falls, which is -south of the
A further contention is made by the.State which, if sound, would make it unnecessary to interpret the Stene patent and claimants’ chain of title, namely, that the State had, prior to the making of the patent to Conrad Stene, granted to the Western Inland Lock ¡Navigation Company all the water of the Oswego river. If this position is sound, there were no riparian rights that the State could convey to Conrad Stene; for the statute creating the Western Inland Lock ¡Navigation Company antedates the Stene patent. At the time it incorporated the Western Inland Lock Navigation Company, the State might have conveyed the bed of the Oswego river and all of the riparian rights in it, just as it granted to the company the beds of the Mohawk and Hudson rivers, for the State had not previously granted to any individual or company the bed and riparian rights of the Oswego river. The statute, however,, does not grant to the company the bed of the Oswego river and its water. There is nothing in the statute to justify any such generous gift on the part of the State. The act was passed March 30, 1792, and incorporated two companies known as the Western and Northern Inland Lock Navigation Companies, one for the purpose of establishing navigation from the Hudson to Lake Champlain and the other, with which we are here concerned, for the purpose of opening lock navigation from the Hudson river to Lake Ontario and Seneca lake. The statute provides for the incorporation, the subscription to stock and other details with which we are not interested in this case and then enumer
The validity of the Stene patent as a conveyance of the bed of the river is attacked by the State on the ground that the statute required a special grant of land under water. If this were true, it would be a strong circumstance to take into account in construing the Stene patent; but the statute in force at the time that the Stene patent was granted contained no such requirement. There was a statute which permitted the Commissioners of the Land Office to grant land under the water of “ navigable rivers ” as they might deem necessary to promote the commerce of the State, provided that the grant should be made to the owner of the adjacent land. Laws of 1736, chap. 67. Under this statute the conveyance could only have been made to Stene and his successors in title; but the term “navigable” as used in this statute hac been held to mean a tidal stream, and it, therefore, has no application to this situation. The statute upon which reliance is placed by the State provides that “ lands under the water of navigable rivers ” may be granted as the commissioners may deem necessary “ to promote the commerce ” of the State. With reference to the use-of the term “ navigable ” in this statute, Vice-Chancellor Grridley said, in Varick v. Smith, 9 Paige, 556: “I cannot_think that the legislature intended by this provision to declare that the doctrine of riparian ownership was applicable to rivers which were navigable in the most extended sense. The common law interpretation of the term c navigable ’ had been settled. It had received a construction by adjudication and when applied to a river, it meant a river where the tide ebbed and flowed and by the principle of the common law the bed of such a stream belonged to the State.”
It is also urged by the State that the land actually laid off to Stene covered more than he was authorized to take under the statute. The patent gave him 200 acres, but a survey made for this trial shows that there are 208 acres in the upland, not counting the acreage in the Oswego river to the center thereof. After the trial, engineer Breen sub
“ It is a matter of common knowledge, in respect to lands bordering on streams and other bodies of water, that it is usual in surveys, when made, to so describe the uplands as to compute the" number of acres they contain, as generally in them, exclusive of the soil beneath, the water is mainly the value, and the quantity of the uplands embraced in a conveyance constitutes, in view of the situation, the basis for the measure of the consideration.” Gouverneur v. N. I. Co., 134 N. Y. 368.
There has thus been disposed of, all preliminary questions which affect claimants’ title; and we come down to the main issue in the case as to whether or not the patent granted by the State to Conrad Stene in 1793, under which the claimants hold, carried his title to the center of the Oswego river. If it did carry title to the center of the river, and claimants have succeeded to that title, they are in possession of such riparian rights as have not been disposed of by them or their predecessors in title or as have not been acquired subsequently by the State. If the title does not go to the center of the river, but stops at the water’s edge, and the
This is the language, upon which we are called to say whether or not claimants’ title extends to the center of the river and which must be examined in the light of the decisions of the court construing similar language, considering such facts as surround the case. The patent, it will be observed, describes its starting point both by reference to the northwest comer of another tract of land south thereof and by reference to a white ash sapling standing “on the east shore ” of the Oswego river. At the very outset, therefore.
In Mott v. Mott, 68 N. Y. 246, the court says: “When lands are granted bounded upon a highway or a stream not navigable, unless by the terms of the grant, or by necessary implication, the highway or the bed of the stream are excluded, a title will pass to the center of the highway, or stream.” P. 252.
In Canal Commissioners v. People, 5 Wend. 423, we find the following language: “ If the grant is bounded on the stream or along the same, or on the margin thereof or where any other words of similar import are used, the grant legally extends to the middle or thread of the stream; and not only the bank but the bed of the river and the islands therein * * * are conveyed to the grantee, unless they are expressly reserved, or the terms of the grant are such as to show a clear intention to exclude them from the general operation of the rule of law.” P. 444.
In Seneca Nation of Indians v. Knight, 23 N. Y. 498, the court held: “A boundary line running from a post on tbe north bank of a creek 1 thence down the same and along the several meanders thereof to the place of beginning,’ which was also the bank, includes the bed of the stream to the center.”
In Van Winkle v. Van Winkle, 184 N. Y. 204, the rule is laid down as follows: “ Where a line runs to a stake or to a mark upon a fence or a tree upon the bank of a stream or upon the side of a highway, and thence along the meandering of the stream or along the highway, the stake, mark or tree will be deemed to indicate the place of the line and not the
These authorities are sufficient to indicate that a description like that contained in the grant from the State to Stene, beginning at a stake standing on the east shore of the said ■ Oswego river and “running thence forty-two chains, then north forty-five chains, then west forty-eight chains to the said river and then up along the same to the place of beginning,” would carry the title to the center of the river. But there are many other authorities that might be cited to substantiate this view.
In Commissioners of the Canal Fund v. Kempshall, 26 Wend. 403 (1841), the Genesee river was involved. The State was constructing a new aqueduct across the river in the course of the improvement of the Erie canal, and Kemp-shall claimed that his grist-mill situated on the river below the site of the aqueduct was interfered with by impairing the supply of water. At this point the Genesee river was nonnavigable, in fact, except that logs were occasionally floated to a sawmill past the premises. A dam was situated some distance above Kempshall’s property, and the river was navigable in fact for many miles to the south. Some distance below Kempshall’s property was situated the Genesee falls, from the lower one of which the river was navigable to Lake Ontario. The head-note substantially summarizes the decision: “Fresh water rivers, to the middle of the stream, belong to the owners of the adjacent banks. If navigable, the right of the owners is subject to the servitude of the public interest for passage or navigation. The owners, however, are entitled to the usufruct of the waters flowing in the rivers, as appurtenant to the fee of the adjoining banks, and for an interruption in the enjoyment of their privileges in that respect; in consequence of public improvements made by the State, are entitled to compensation for damages sustained.”
The Chenango river was involved in the ease of the Chenango Bridge Co. v. Paige, 83 N. Y. 178 (1880). In
Much of the legal atmosphere on the subject of riparian rights was clarified by the case of Smith v. City of Rochester, 92 N. Y. 463 (1883). The Legislature had granted the'city of Bochester the right to supply water, to its inhabitants
The case of Gouverneur v. National Ice Co., 134 N. Y. 355, involved Croton lake. The conveyances describe the property concerned as running to the pond near a large rock, thence northerly along said pond and “ to a birch sapling ” marked on the west side of the pond, “ then south * * * along the pond ” and “ beginning near the north side of a large rock on the west side ” of the pond, then “ along said pond ” and “beginning at a maple marked by said pond, thence north * * '* along said pond.” . The court held that these grants ran to the center of the pond and that together the grantees took title to the whole of it. In the course of his opinion Bradley, J., says: “ The views already given lead to the conclusion that the common law relating to the construe-’ tion and extent of grants of land bordering and bounded on such waters, is applicable alike to a conveyance bounding lands on fresh water rivers and small nonnavigable lakes or ponds. Such is' the character of the one in question; and whether its bed was embraced in or excluded from the grants
Waller v. State, 144 N. Y. 579 (1895) involved the question of the right of the State to withdraw water from Skaneateles lake to the damage of riparian owners upon the outlet of the lake, and in that case an award of damages for the claimant against the State for withholding water from Skaneateles creek was sustained by the court'of last resort. Another case which involved Skaneateles lake was that of Lakeside Paper Company v. State, 15 App. Div. 169 (1897). In this case the board of claims refused to allow damages to the claimant for the State’s withholding the water of Skaneateles lake, thereby impairing his riparian rights. The award was reversed by the Appellate Division, the court holding that the right of the State to the water of Skaneateles lake for canal purposes was that of an upper riparian owner, and that it was liable to lower riparian owners who had mills situated on the Skaneateles outlet for the detention by it of the water of the lake.
We have, however, in this instance, two cases which involve grants of land upon the Oswego river itself and which, without other authorities, would, until overruled, seem to be sufficient to establish riparian rights in the claimants derived from their predecessor, Stene.
One of these cases is Varick v. Smith, 5 Paige, 136 (1835); 9 id. 547 (1842). In this case the complainant, Varick, was the owner of land and a mill on the west side of the Oswego river below one of the dams which had been con-' structed by the State in connection with the Oswego canal. The defendant, Smith, was the owner of land and a mill on the opposite side of the river. The State had leased to Smith all the water of the State dam not needed for the canal, Varick brought suit against Smith and the State to have the lease to Smith adjudged null and void and to restrain 'Smith from intercepting the water in its descent from the dam, al
The other case is that of Van Buren v. Baker, 12 N. Y. St. Repr. 209. In that case the so-called Scriba patent was involved, a patent which embraced 499,135 acres of land on the east side of the Oswego river, extending both north and south of the Stene patent, which was excepted from the conveyance made to Scriba. This conveyance runs various courses to Lake Ontario, then to the “ mouth of the Oswego or Onondaga river where it empties into the said lake, then up along the said river ” to a tract of 200 acres of land granted to John Taylor; and to the said “Oswego or Onondaga river, then up along the same.” It will be ob
The various cases relating to the Hudson river, Lake Champlain, Miagara river and Mohawk river are not in point in this' case, because in those cases tide water or boundary streams were involved, or the title to the bed of the stream was expressly reserved by the State in its grants. Smith v. City of Bochester, 92 N. Y. 463. We are dealing in this case with a nontidal stream which is not a boundary stream and which, at the point in question, is not even navigable in the common acceptation of the term.
The construction here placed upon the Stene patent is, as we have seen, the construction which has been placed by the courts upon patents of land along the Oswego river which have come up for review. The language of these patents is substantially the same. In no one of them is there an express reservation to the State of the bed of the stream; and
There are acts of the State which bear out the construction here placed upon the Stene patent. Private enterprise had developed to some extent the water power on the Oswego river before the State constructed the Oswego canal.
In order to supply itself with sufficient water to operate the canal it constructed dams at different points. In the early history of the Oswego canal, prior to the case of Variek v. Smith, the right to sell the surplus water created by the construction of these dams was raised; and statutes were passed and various acts were done by the State officers on the assumption that the State owned the surplus water thus created.' Meanwhile, controversies had arisen between the State and riparian owners which were set at rest by the case of Yariek v. Smith; and, since the decision in that case, the State has uniformly recognized the rights of riparian owners to the surplus water not needed for the operation of the Oswego canal. For upwards of sixty-five years, the State has acquiesced in the claim of the riparian owners to the use of the surplus water at the dam in question. There existed a mill, substantially at the site of the present power plant station of the claimants, as early as 1819; and since that time there have attached to this property certain riparian rights, which the State has not disputed and has not disturbed, except as necessary for the operation of the Oswego canal. Consistent with the position of the State since the decision in the Yariek case, the State in this proceeding has served upon the claimants notices of appropriation, two of which purport to take from the claimants all of their riparian rights, •indicating an intention to appropriate such riparian rights remaining in the claimants derived from the Stene patent and not theretofore disposed of or acquired. These acts of
The construction thus given to the Stene patent inures to the benefit of the claimants; for, by mesne conveyances and by similar language as that in the Stene patent, land belonging to their predecessors sought to be taken in this proceeding which formed a part of the Stene patent has become vested in them and this title carries with it the usual riparian rights in nontidal, nonboundary streams which still adhere to the land. The property was conveyed in the form in which it was patented to Stene and in the identical language'of the patent down to the year 1819, with two exceptions. These exceptions are the conveyance in 1794 from Elijah Bent to Benjamin G. Minturn and John T. Ohamplin and in 1801 from James Caldwell to Samuel Hubbard and Isaac Crocker. In these conveyances the description is “ to the bank or edge of the Oswego river, then down the river on the edge of the river to the place of beginning;” but any ambiguity of intention to convey the bed of the river is cured by the following descriptive words, summing up the conveyance as “ a tract of land granted by the State of New York to Conrad Stene.” Ousby v. Jones, 73 N. Y. 621. From 1819, the year in which Norman Hubbard and George F. Fally acquired title to Stene’s 200' acres, the land was divided; but the chain of title in each case runs back to this common source.
In 1836 Samuel Farwell acquired title to the power plant station property through two separate chains of title, in one • of which the property is described as running “ to the Oswego river ” and “ down the Oswego river ” and, in the final
The chain of title of the Kenyon mills property bears out the construction given above to the Stene patent and contains abundant evidences of a claim of ownership to the center of the river and of actual conveyances of the land to the center of the river. Thus, when Forman Hubbard and wife conveyed to George F. Fally, by deed dated January 4, 1828, the south half of the Stene location, they expressly reserved the water privileges in the Oswego river. The conveyance runs to a point “ at the edge of the Oswego river ” and to a point “ at the water’s edge ” and contains these words: “ Reserving however all right, title and interest whatsoever to the water or hydraulic privileges in the Oswego river belonging or in anywise appertaining or that may heretofore have belonged or appertained to the above described premises.” When Hubbard conveyed parcels from the north half of the Stene location, conveyances ran “ westerly to the Oswego river ” and “ on the west of the Oswego river.” Many conveyances in this chain of title contain the above language. In the conveyance from Robert 0. Kenyon and others to Charles G. Case and others, dated March 30, 1848, the description runs “ to the middle of the Oswego river or as far as our rights extend into said river; thence northerly along the middle of -said river.” The Kenyon mills property is connected with the hydraulic canal, and many of the conveyances contain references to the quantity of water which the property is entitled to use. Thus the conveyance from
The chain of title of the Genesee mills property reveals more clearly than that of the other two parcels the dispute as to water rights between the State and the owners of land bordering upon the Oswego river subsequent to the construction of the Oswego canal and the assertion and conveyance of water rights by abutting owners after the decision of the Varick case in 1842. The conveyance from George F. Fally and wife to Herman Hubbard, January 4, 1828, carried the title “ to the Oswego river, thence up along the river ” and conveyed “ all right, title and interest whatsoever to the water or hydraulic privileges in the Oswego river belonging or in anywise appertaining to the said Stene’s location.” This conveyance was the conveyance of the north half of the Stene location, which north half includes the premises in question. The conveyance from Sarah Hubbard to William Jerome and Henry Wells, made August 11, 1830, conveys the right to use the bed of the river; and some of the subsequent conveyances contain the same language. The conflict between the State and riparian owners is revealed in conveyances and contracts made after the construction of the Oswego canal. Thus, in the conveyance between Samuel Farwell and Charles G. Casé and others, made February 4, 1837, the' parties convey certain water privileges, with this reservation, however, that if, at any time thereafter, the “ State of Hew York shall lawfully deprive the parties to this agreement of the rights or privileges of drawing water from the pool and dam aforesaid for the supply of the mills and machinery hereafter to be erected upon said canal by the parties of the second part ” a certain
These references are sufficient to show that, from the earliest conveyances containing any mention of the Oswego river, the parties have claimed title to the bed of the river and to riparian rights in the river; that their rights in this respect were in question for a time, but that this doubt was resolved by decisions of the courts in favor of the claim of the owners of the land abutting upon the river and that since that time it has been asserted subject to such rights as the State aequired through the construction or reconstruction of the Oswego canal.
This paper title is supported by such an occupancy of the land and use of the water under a claim of title as, alone, would establish a title by adverse possession as against the State. The claimants’ claim of title goes back over a hundred years to a patent granted to Stene in 1793; and since that year, and particularly since the decision in the Varick case which occurred in the year 1842, over sixty-five years ago, Stene and his successors in title have claimed the land in question and the riparian rights attached thereto. The deeds describe the land substantially as in the Stene patent as extending “ to ” the river and “ along ” the river; but as early as 1837, seventy years' ago, there was an agreement
The award to Edmund Merry and George G. Breed by the canal appraisers in 1872 (Ex. 58) expresses the same views: “The references of the learned counsel for the State to numerous statutes in regard to surplus waters, &c. are mot applicable, as those statutes were all passed long before the decision of Varick v. Smith, 9 Paige’s Chancery reports, which was in 1842, and the proceeding of the Canal Board put in evidence in this case was recognized by the Board in acting upon the petition of Phcenix for the repayment of the money
■The effect of these facts to establish adverse possession is not destroyed, although the land occupied by claimants, or part of it, was formerly land under water; for such land, under the authorities of this State, may be acquired by prescription. An authority for this position is found in the proceeding of the State to acquire land for the Miagara Reservation. Matter of Commissioners of State Reservation at Miagara, 37 Hun, 537. In that case the Commissioners held that the Miagara river was a boundary stream, and that the title of the land upon its shore extended only to high water mark, and that the State owned the bed of the river. They found that one of the claimants in that case had acquired by prescription riparian rights in the river, for which they awarded him substantial damages. Another authority is that of Timpson v. Mayer, 5 App. Div. 429, in which the court says: “ That title to land under water in a navigable river, as .well as exclusive rights of fisheries therein, may be acquired by adverse possession or prescription against the state, is settled law in this jurisdiction.” P. 429.
Under these facts, claimants have acquired title to the land in question by adverse possession and also to such riparian rights used by them as have not been appropriated to the canal for canal purposes prior to the present appropriation. The general rule is that title by adverse possession cannot be acquired as against the State in the absence of statutory authority. This authority, however, is found. in various statutes which prescribe the limitations within which the State and those making claim under it may maintain an action to recover real property. The limitation contained in the statute of-1788 was forty years. Chap. 43. The same limitation was prescribed in the statute of 1801. Chap. 183. From 1830 to 1848 the limitation was twenty years, while,
The record title and the doctrine of prescription dispose of the position of the State that the land sought to be condemned is in the original bed of the Oswego river. This position was sought to be maintained by evidence of living witnesses and by excavations made tending to show that the land had been filled in. The State claims that the high bank -to the east of the premises formed the original bank of the river. This contention may be true, but the fact is so far in the past that it will not form a basis for adjudicating this case. It is quite likely that the Oswego river was originally much higher than at present and that it covered a great deal of land which is now out of water, but
This disposes of the question of title which the court is called upon to decide at this stage of the case, and the answer to this question is clearly that the claimants are the owners in fee of the land sought to be condemned and of the riparian rights attached thereto. If the conclusions above arrived at are correct, the Stene patent covered all of the land under the Oswego river to the center of the river and all of the riparian rights attached thereto; and all of these riparian rights continued in Stene and his successors in title down to the construction of the canal in 1826 when, by the building of the dam across the Oswego river and the construction of the canal, the State acquired riparian rights attached to the premises covered by the Stene patent and later, in 1867, when the Oswego canal was improved, additional riparian rights were acquired. The extent of these riparian rights this decision does not determine, for the question involves facts concerning which no proofs have been offered. What riparian rights remain in the claimants after such acquisition by the State likewise remain unadjudicated for the same reason. What part of these riparian rights the State seeks to acquire in this proceeding is also one of the questions left in abeyance. This decision merely holds that the claimants are the owners of the land actually proposed to be taken and of such riparian rights as still attach to their premises, leaving all other questions for future determination.
Judgment accordingly.