189 A.D. 286 | N.Y. App. Div. | 1919
Plaintiff is the owner of a dam seven hundred and ninety-six feet long across the Hudson river at Mechanieville. It also owns the land on both sides of the river at the termini of the dam. As originally constructed in the year 1882 the dam was sixteen feet high. In the year 1903 the Barge Canal Act was passed being chapter 147 of the Laws of that year which canalized (§3) the river from Waterford to Fort Edward. Notwithstanding that legislation the plaintiff in 1904 increased the height of its dam three feet. Subsequently the State in the construction of the Barge canal built lock No. 3 through the easterly end of the dam and dredged the bed of the river above and below the dam for the purposes of the canal. In doing so the State officers adopted the height of the dam at that time as the basis of construction and built the canal and lock to conform to the dam as it then existed. At about the time the canal and lock were completed, and in 1913, the plaintiff put flashboards on the dam raising it to a still greater height of two and one-half feet. These flashboards were removed by the defendants acting for and representing the State for the protection of the canal. The plaintiff thereupon instituted this action to restrain the defendants from interfering with its dam. It is found by the trial justice that by reason of the flashboards the Barge canal could not be safely navigated nor could the locks or canal structures withstand the water pressure and that they were jeopardized and their usefulness impaired. This finding is not criticised. From a judgment dismissing the complaint the plaintiff appeals.
The dam was built pursuant to chapter 406 of the Laws of 1882 which purported to authorize its construction. Chapter 683 of the Laws of 1900 was passed to legalize the erection
The plaintiff does contend, however, that even assuming the ownership of the State in the bed of the river the State could not interfere with the dam without legislative authority because it had granted its consent to the location of the dam in the river by the acts of 1882 and 1900 and that such consent has not been revoked. The Barge Canal Act (Laws of 1903, chap. 147) in section 3 specifically states: “The route of the Champlain canal as improved shall be as follows: Beginning in the Hudson river at Waterford, thence up the Hudson river canalized to near Fort Edward,” etc. Here is a distinct declaration of legislative authority to use the river for canal purposes and constitutes a revocation of any license or consent theretofore granted. The act of 1903 provides in what manner property may be appropriated for the construction of the canal and the plaintiff claims that because the State did not make its survey and map and file the same and otherwise comply with the methods and procedure specified by the statute that, therefore, there has been no appropriation and the State is a trespasser. Compliance with those statutory requirements was necessary only when the State appropriated the property of others. It was unnecessary for the State
The plaintiff further contends that the State never had title to the bed of the river at the site of the dam because
We turn now to a consideration of the said patents. The first was granted by Colonial Governor Dongan in the year 1684 to private individuals and conveyed land by the following description: “ A Certaine Tract or Parcell of Land scituate lyeing and being to the North of Albany on both sides of Hudsons River beginning at the uppermost limitts of the land bought formerly by Goose Garretsen and Phillip Peterse Schuyler being a Creeke called Tioneen de houwe which is the Southermost Bounds of the said Lands and from thence up both sides of the River Northerly to a Creeke or Kill on the East side of the River called Tionoon de houwe the Land on said Creeke Included keeping the same Length on the West side of the River and soe Runnes East and West into the woods as farr as the Indians Right and Title to the within menconed Land afore recited as by a Certaine Writeing or Indian Deed bearing Date the 26th Day of July in the thirty fifth Yeare of his Maties Reigne 1683 Relacon being thereunto had doth more fully and at Large appeare.” The “ Tioneen de houwe ” is Anthony’s kill, a tributary of the Hudson on the westerly side at Mechanicville about 3,650 feet below the plaintiff’s dam. The “ Tionoon de houwe ” is the Batten kill, a tributary of the Hudson on the easterly side and about twenty-two miles above Anthony’s kill. The rule is well established that nothing passes in such grants as the above by implication or except such as is expressed in unequivocal language. The patentee does not by implication take the bed of the river to the exclusion of the State. Every intendment is to be made in favor of the State. (Canal Commissioners v. People, 5 Wend. 423, 463; People v. Page, 39 App. Div. 110, 118; Langdon v. Mayor, etc., 93 N. Y. 129, 145; People v. New York & Staten Island Ferry Co., 68 id. 71, 77; Sage v. Mayor, 154 id. 61, 81; Dermott v. State, 99 id. 101.) In the light of such rule we must construe the above description and thus construed it does not in terms or by implication convey the bed of the river. Nothing appears from the grant indicating such an intent. It is a well-known fact that the Colonial Government as a matter of policy studiously avoided granting the river bed
The other patent is known as the Queen Anne or Lord Cornbury patent and was granted in the year 1708 to the Dongan patentees or their successors and is confirmatory of the Dongan patent. The description begins “ att the South, side of the Mouth of a Certain Creeck on the West side of Hudsons River Comonly called by the Indians Tionoondehowe & by the Christians Anthonys Kill,” and extends westerly into the woods six miles from the river, thence northerly parallel with the river to a point opposite the north side of the Batten kill and then by a straight line east to the north side of the mouth of the Batten kill and thence still further east six miles into the woods on the east side of the river, thence southerly parallel with the river and six miles distant therefrom “ untill it Come Opposite to and Bear East Six Miles Distant from the North side of the Mouth of Schaackook Kill which is the Bounds of Schaackook Patent Late belonging to Henry Van Renslaer.” The Schaackook kill is the Hoosick river, a tributary of the Hudson on the easterly side about 9,000 feet above the plaintiff’s dam and considerably more than two miles above the mouth of Anthony’s kill. The northerly boundary of this patent crosses the river. Not so the southerly boundary. There - is no southerly boundary
It follows that the trial justice properly denied injunctive relief to the plaintiff and that the judgment should be affirmed, with costs. This court disapproves of any findings to the effect that the river at the location of the plaintiff’s dam is not navigable and finds that the river at that place is and was navigable.
Judgment unanimously affirmed, with costs. This court disapproves of any findings to the effect that the river at the location of the plaintiff’s dam is not navigable, and finds that the river at that place is and was navigable.