30 A.D. 43 | N.Y. App. Div. | 1898
I think the indentation or cove in question in this case must be. regarded as part of the- St. Lawrence river.
The Commissioners of the Land Office have power to grant lands under the waters of navigable rivers “to the owners of the lands adjacent to the lands under water.” (Laws of 1894, chap. 317, § 70.)
Land formed by alluvion in a river is to be- divided among the different riparian proprietors according to the following rules : “1. To measure the whole extent of the ancient bank or line of the river, 'and compute how’many rods, yards or feet-each riparian proprietor owned on the river line, 2. The next' step is, supposing the former line; for instance, to amount to 200 rods, to divide the newly-formed bank or -river line into 2001 equal parts, and appropriate to each proprietor as many portions of'.this new river line as- he owned rods on the old; then, to complete the division, lines are to be drawn-from the points at which the proprietors 'respectively bounded on the old to the points thus determined as the points of division on the newly-formed shore. * '*■ * It (this rule) may require modification, perhaps, under particular circumstances. For instance,'in applying the rule to the ancient margin of the river, to -ascértain the extent, of each proprietor’s title on that margin, the general line ought to- be taken, and not the actual length of the line on that margin,, if it happens to be elongated by deep indentations or sharp projections.” (Deerfield v. Arms, 17 Pick. 41.) The same- rule is recognized in Batchelder v. Keniston (51 N. H. 496) ; Jones v. Johnston (59 U. S. [18 How.] 150) ; Johnston v. Jones (66 id. [1 Black] 209) ; Knight v. Wilder (2 Cush. 199) ; Nott v. Thayer (2 Bosw. 10), and O'Donnell v. Kelsey (10: N. Y. 412).
The' same principle has been applied in this. State ■ to patents granted by -the State to lands under water,-
The lateral limits of land granted to- a patentee“must be- perpendicular to the shore,, not to so much of-it only as adjoins the subject ■of the grant,, but to its general course ; otherwise; where the shore is irregular - and- crooked, the -grants to which adjoining owners; would be entitled (should any be made)" might conflict with, each
Tested by this rule, the relator has received all he is entitled to, if not more, and the grant to the Crossmons is no more than the commissioners had power to grant.
The relator contends, however, that the effect of the grant is to deprive him of some of his rights as a riparian proprietor. I do. not see that his rights as such proprietor have been, or will be, violated.
The rights of a riparian proprietor bounded upon a navigable stream are of access to the navigable part of the river from the front of his lot, and the right to make a landing, wharf or pier, for his own use or for the use of the public. (Rumsey v. N. Y. & N. E. R. R. Co., 133 N. Y. 79 ; Sage v. Mayor, 154 id. 61 ; Yates v. Milwaukee, 77 U. S. [10 Wall] 497.)
The relator will be deprived of none of these rights by the grant he is seeking to set aside; he will still have, access from his front to the channel of navigation upon the river, and the cases that he has referred to to sustain his contention are where grants to other parties have interfered with or obstructed the access of owners of uplands to the channel or navigable portion of the river. The only interference here is by cutting off access by boats to the dock that he has built in. the cove which indents the line of the river fronting his property and that of the Crossmons. He contends that, by virtue of the grant that was made to him, he has acquired a property. right of passage over the waters of this cove or bay to his dock thereon, and to his landing place for skiffs.
I do not think this contention can prevail. There are many cases in the books as to the division among adjoining proprietors, of lands under the waters of .coves, all of which, however, are to the effect that such lands should be so divided as to give them a ratable frontage at the mouth of the cove or bay, combined with a ratable distribution of the lands of the cove under the water. (See Rust v. Boston Mill Corporation, 6 Pick. 156 ; Tappan v. Boston Water Power Co., 157 Mass. 24.)
These rules, however, it is needless for us to examine, because it
The application now made by the Crossmons, and the grant made to them, which it is here sought to review, contains no more land underwater than was granted to them'in 1883; it gives them a front upon the river at the mouth of the cove, which does not interfere with the relator’s front on the river or at the mouth of such cove, and awards to them the land under the- waters of the cove to the same extent, and no more, that was given to them when, apparently, by common consent it was divided between them and the relator in the year 1883, which division, so far as the record here discloses, seems to have been an equitable one, whereby such lands were ratably apportioned between them.
The relator’s contention would result in this, that by the grant formerly made to him of the lands under the water, he acquired, •not only the right to fill in such lands and appropriate them to his own use, but also thereby , acquired the right to insist that the remaining portion of the waters of the cove should remain as they were, and the lands under them remain unfilled, and that the State should not thereafter grant them to the riparian proprietors, thns practi- . cally appropriating the whole cove to the use of the relator and depriving the other adjacent proprietors of their equal rights to the lands under the waters in such cove.
When he received his patent for lands under the water he took it subject to the power of the State to grant to the adjoining riparian proprietors the same rights and privileges to the lands under the remaining waters of the cove, and by erecting a dock thereon he could not deprive the adjacent owner of any of his rights as owner of the uplands, among which is the right to apply for and receive, grants of land under the waters adjacent to his uplands.
The same claim, in principle, was made in a case where the prior builder of a mill and dam upon a stream complained of the subsequent erection of another mill and dam upon the same stream that
So here the relator may, perhaps, be put to some little inconvenience by being deprived of access by water to his dock fronting upon the water of the cove by reason of the grant to the Crossmons; his coal, like the logs* in the Palmer-Mulligan case, may have to be. carried a little farther before it can be placed in the coal house, but he cannot, by his prior grant, and because of such inconvenience to himself, deprive the adjoining adjacent proprietor of his equal right to a grant of the land under the waters in front of his premises, or to a ratable frontage upon the channel of the river in front of his uplands.
All concurred.
Grant of commissioners confirmed and the writ of certiorari quashed, with fifty dollars costs and disbursements.