October Term, 1852
John H. Reynolds, for appellant.
C.L. Monell, for respondents.
After a careful examination of the numerous authorities cited upon the points of the attorney for the appellant; respect for the able counsel who submitted them, and a belief in his sincerity in the positions which he has assumed, has alone induced me to give any written opinion in this case, so thoroughly am I convinced that every principle upon which the appellant seeks to recover, has been decided against him in the courts of this state. The great error into which he has fallen, is that, taking "it as conceded that the common law has "been recognized and adopted as the law of this state, and that "the rights of a subject of the British crown, and a citizen of "the state of New-York in navigable waters, are at common "law the same; that the power of the sovereign here in respect "to the alienation of these rights has the same qualifications as "is attached to the power of the English crown." The case of Lansing v. Smith, decided in the supreme court, and reported in 8 Cowen, 146, and afterwards affirmed in the court of errors, (4 Wendell, 9,) has laid down an entirely different doctrine. I quote from the opinion of the chancellor, which was adopted by the court of errors, to show that the sovereign power of the people of this state over these rights, is more extensive than that of the English crown, or the king, as each of these terms is used in the points submitted, though intending to mean, as I suppose, the same thing. "The people of this state, as the "successor of its former sovereign, are entitled to all the rights "which formerly belonged to the king by his prerogative. "Through the medium of their legislature, they may exercise "all the powers, which, previous to the revolution, could have "been exercised, either by the king alone, or by him in conjunction "with his parliament: subject only to those restrictions "which have been imposed by the constitution of this state "or of the United States. By the common law, the king, as " parens patriæ, owned the soil under all the navigable rivers, "or arms of the sea, where the tide regularly ebbs and flows, "including the shore or bank to high water mark. ( Constable's "case, 5 Coke's R. 106; Davies' R. 152, 153; Rex. v. Smith, " Doug. R. 425.) He held these rights, not for his own benefit, "but for the benefit of his subjects at large; who were entitled "to the free use of the sea, and all tide water, for the "purposes of navigation, fishing, c. subject to such regulations "and restrictions as the crown or the parliament might prescribe. "By magna charta, and many subsequent statutes, the "powers of the king are limited, and he cannot now deprive "his subjects of their rights, by granting the public navigable "waters to individuals. But there can be no doubt of the right "of parliament in England, or the legislature of this state, to "make such grants, when they do not interfere with the vested "rights of particular individuals." Authorities are cited by the appellant's counsel to show, that the king cannot make any grants in derogation of these rights; and having established, as he supposes, that proposition, he then deduces from it another, viz. that a riparian proprietor enjoys rights in navigable waters that are not common to all the people of the state. Proceeding upon this erroneous supposition, he then assumes that the common law of England and that of this country is the same; (to wit, the power of the king, and the legislature of this state,) and from it deduces two propositions:
First. That every citizen has a right of navigation and fishing in navigable waters, to be exercised at their free will for private gain or pleasure.
Second. That this right cannot be destroyed by the sovereign power, unless its destruction is essential to the public welfare.
Having cited sufficient from the opinion of the chancellor to show that the power of the king in England, and that of the legislature of this state over those rights are entirely different, I will proceed to show how widely different principles are deducible from different premises. And here I will allow the chancellor to speak, instead of myself, in the case before cited: "The right to navigate the public waters of the state, and to "fish therein, and the right to use the public highways, are all " public rights, belonging to the people at large. They are not "the private unalienable rights of each individual. Hence, "the legislature, as the representatives of the public, may restrict "and regulate the exercise of those rights in such manner "as may be deemed most beneficial to the public at large."
If I understand this, it is precisely the reverse of the appellant's first proposition, for that asserts that his right is a private one, to be exercised at his free will for private gain or pleasure; whereas, this case decides that it is a public right, not private; and that the legislature may restrict and regulate the exercise of it. But let me proceed with the opinion of the chancellor as to the extent of this right, as I have not designed, by any reasoning of mine, to demonstrate what it is, but to show that it has been settled by the adjudications of our courts. He says: "The bank of the Hudson between high and low water-mark, "belonged to the people, and he [meaning the riparian proprietor] "had no better right to the use of it than any other person. "If he built on it or erected a wharf there, it would be a purpresture "which the legislature might direct to be demolished, "or to be seized, for the use of the public. ( Harg. Law Tr. "85.) Or the legislature might authorize erections in front "thereof, as in the case of Smith's wharf on the Thames." ( Rex v. Smith, Doug. 425.) This certainly takes quite a different view of the rights of a riparian owner from that which the appellant's counsel has taken, and seems to me to take away the whole foundation and substance of his proposition. I might stop here with the remark that this denies to the appellant any private right to the waters where the respondents' road was constructed, and if so, he could not have any claim for damages; but as the appellant's counsel has endeavored to satisfy the court that he has some rights peculiar to himself, for which he is entitled to compensation, I will examine them for a moment. Among them he enumerates that of the exclusive right to embark from his own land with all kinds of craft; or to use the natural shore down to high water-mark as a landing place; to draw nets to his shore, c. These exclusive rights do not belong to the appellant because his lands adjoin navigable waters, but because no other man can enjoy them, for the reason, that if he enters on the appellant's land without his permission, whether his object be to draw nets to shore, or any other object in doing so, he becomes a trespasser. The water being in front of his land, does not alter these rights; but every other citizen has as good right as himself to fish in the water opposite his lands, provided he does not draw his nets upon the appellant's premises. So also may any other citizen navigate the same waters as well as the appellant, provided he makes no entry upon his land. I can see nothing peculiar in these rights which are not possessed by any other person living a thousand miles from navigable waters, as I suppose he would have the right to the exclusive possession of his land, to come and go to and from it with teams and produce; and should any other person attempt to exercise the same right without the permission of the owner, he would be a trespasser. In the case of Lansing v. Smith, the plaintiff insisted that he had sustained damages peculiar to himself in addition to that which he sustained in common with the public; and I will quote from the opinion of the learned judge in that case: "It must be conceded," he says, "that there is nothing in "the plaintiff's case, so far as he complains of the pier and the " sloop lock, to distinguish it from that of every other owner of "a wharf within the basin; all the proprietors of docks above "the temporary bridges have sustained an equal injury with "the plaintiff in consequence of their erection. The injnry, therefore, "for which the plaintiff seeks remuneration, is not peculiar " to himself. It has been equally felt by hundreds of others "whose property is similarly situated." The court then say, that in such a case, when the injury sustained is remote and consequential, it is damnum absque injuria, and is to be borne as a part of the price to be paid for the advantage of the social condition. The same doctrine has been subsequently laid down by the court in the case of Radcliffe's Executors v. The Mayor, c. of Brooklyn, (4 Comst. 195.) The case of Lansing v. Smith was on all fours with this, with the exception, that in some of its features it was stronger for the plaintiff, to wit: the plaintiff contended, and with some plausibility, that the grant of the land commissioner to the owners of the wharves admitted their right to the lands under water, and excluded the power of the state to reconvey to others. The facts in other respects were exceedingly like those of this case. The legislature authorized the construction of a pier called the Albany basin, directly in front of docks which had been erected by individuals under the authority of the commissioners of the land office, by which the said wharves were rendered nearly valueless, as the communication with them was almost wholly cut off; and still the court held that such owners could not recover for such consequential damages.
The second proposition virtually concedes that this right of the appellant can be destroyed by the sovereign power, provided its destruction is essential to the public welfare. It seems to me, that this concedes the whole ground, and leaves nothing for the plaintiff to stand upon in order to sustain his right to recover in this case. Who is to judge of the necessity for such destruction, except the sovereign power, acting through the legislature, which represents it? It cannot be possible that such necessity is to be left to be judged of by the circumstances of each particular case. If so, a law suit would be the certain consequence of every exercise of this right by the sovereign power. But after all, he concedes no more by this, than was settled in the case of Lansing v. Smith. In that case, the court say, "If the act be unconstitutional, it must be on the "ground that the plaintiff had either at common law, as the "owner of the adjacent soil, or by virtue of the patent from the "state to Quackenboss, for land under water, opposite to the "shore, a claim to the natural flow of the river, with which the " state had no right to interfere by any erections in the bed of " the river or in any other manner. This proposition appears to "the court too extravagant to be seriously entertained. It denies "to the state the power of improving the navigation of the river "by dams, or any other erections, which must affect the natural "flow of the stream, without the consent of all the proprietors of "the adjacent shore, within the remotest limits which may be "affected by the operation. Every new dock that is erected, "partially diverts the natural course of the stream, and upon "the principles contended for by the plaintiff, violates the rights "of all the proprietors of docks below it. The right of the "plaintiff to navigate to and from the dock is not denied. All "that is contended for on the part of the defendants is, that the "mode in which that right is to be exercised, is subject to be "controlled and regulated by the legislature as in their judgment "the interest and convenience of the public may require." "This," the court say, "is founded upon the principle, that the "general good is to prevail over partial individual convenience." I will not pursue this subject farther, for it seems to me, if any principle was ever settled, this case settles the principle, that the legislature has the right to regulate and control all navigable waters within the state, as in their judgment the interest and convenience of the public may require.
It is not upon the ground alone of improving the navigation of such waters, but on the ground that they possess the power, and can exercise it for any public improvement, such as the construction of a railroad, or the laying out of a public highway.
The judgment of the supreme court should be affirmed.
RUGGLES, Ch. J. and JOHNSON, GARDINER and WELLES, Js. concurred in the foregoing opinion.
The plaintiff is the owner of a farm of land in the county of Columbia on the east bank of the Hudson river, which has a front of two thousand feet on that river. The river is navigable there for ships of the largest tonnage, and the tide ebbs and flows more than forty miles higher up the river. Both above and below this spot the river is in common and public use for purposes of ferriage, fishing and navigation.
The defendants were incorporated in 1846, with authority to construct a railroad from the city of New-York to the city of Albany, through the counties immediately bordering on the east shore of the river, and were authorized to enter upon any land or water for the purpose of surveying, constructing and maintaining their road; but all real estate thus entered upon, if not voluntarily granted or given or purchased at a price mutually agreed upon, should be appraised in the manner pointed out in the statute, and the amount of the appraisal be paid by the company to the owner.
Pursuant to the authority thus given the defendants entered upon the Hudson river in front of and adjacent to the plaintiff's farm, between ordinary high and low water marks, and constructed a line of solid embankment along the whole front of his farm, so raised and elevated that its surface is about five feet above the ordinary high water mark of the river and forms a complete barrier to the passage of boats, vessels and other craft through the same, so that the plaintiff is prevented from and obstructed in the passage of vessels, c. to and fro between his farm and the channel of the river, and is deprived of all means of getting from his farm to the river with vessels, c. for the purpose of removing produce and other lawful purposes.
None of the plaintiff's land was taken by the defendants, and it is insisted that consequently no damage which he may have sustained could be appraised in the mode pointed out in the statute, for that mode of making compensation is confined to cases where land of the party injured is actually taken by the company. The company has not in any other manner compensated him for his damages, and therefore he brought this suit to recover them.
The defendants demurred to the complaint and judgment was given for the defendants, both at special and general term in the court below.
The question involved is an important one, being simply whether by the act of the legislature the plaintiff can be deprived of or injured in his riparian ownership on the bank of a navigable river, without his consent and without receiving any compensation therefor.
It is not disputed that the act of the defendants has thus cut off his farm from its former access to the channel of the navigable waters of the Hudson, and that that act was authorized by the statutes passed by the legislature. The question raised is whether that can be done without affording him just compensation?
The provision of the constitution is that "private property "shall not be taken for public use without just compensation." And it has already been held, so that we may now regard it as settled law in this state, that land taken for a railroad is taken for a public use.
Thus the question arises, whether riparian ownership on navigable waters is private property, so that it must be paid for when taken for the public use.
Its examination involves the inquiries: First. What are the rights of the state as to the soil over which the tide ebbs and flows in a navigable river, between low and high water marks? Second. What are the rights of the owner of the uplands adjacent and fronting on the river?
It is a rule of the common law that the crown in England, or with us, the state, is the source whence flows all title to land in the state. And hence, that whatever is not vested in the citizen in individual ownership, remains still in and belongs only to the state.
When regarding the rights of the state in respect to lands, we must not be unmindful that it has two interests, one governmental and the other proprietary. Or, as it is divided by M. Prudhon in his Traite du Domain Public, the public domain, which is that kind of property which the government holds as mere trustee for the use of the public, such as public highways, navigable rivers, salt springs, c. and which are not, of course, alienable; and the domain of the state, which applies only to things in which the state has the same absolute property as an individual would have in like cases. ( See American Jurist, No. 37, p. 121.)
This distinction has not always been carefully observed. Before magna carta all the jura regalia were regarded as the private property of the crown, which the king might alienate, and hence, there were grants of several fisheries in the waters of the sea and of navigable rivers, which were thenceforth held in severalty by individuals in derogation of the common right vested in all the subjects. These grants were a source of revenue to the crown; at the same time, if continued, they would have surrounded the kingdom with private monopolies in the waters of the ocean. Chapter 16 of the great charter was aimed at the redress of this evil.
From that time no such grants have been made, though those which previously existed are frequently spoken of in the reports, and are calculated to mislead as to the rights of the riparian owner, unless their origin is kept constantly in view. But with this exception the distinction I have referred to is often recognized, and ought not to be overlooked by us on this occasion.
Rivers in which the tide does not ebb and flow, though declared to be public highways, are nevertheless private property, and the soil to the middle of the river belongs to the riparian owner, subject only to the easement of the public use. But in navigable rivers, where the tide does ebb and flow, the soil belongs to the state, up to ordinary high water mark; the riparian owner, unless he has a special grant, owning no farther than to high water mark. But this ownership of the state is also subject to the public use. The owner in either case may exercise his proprietary interest, by erections on the soil of the river, provided that such erections do not interfere with the public use, or navigation of the waters covering the soil.
This right of property is in both instances "affected by servitudes "of public interest," and is in all respects analogous to the property in fee of any land subject to a public or private right of way or any similar easement. It is absolute and complete in every respect not incompatible with the enjoyment of the road or path by those entitled to its use; for it is a general principle governing every such servitude, whether of public or private interest, that nothing passes as incident to an easement but that which is requisite to its fair enjoyment. ( Com'rs of Canal Fund v. Kempshall, 26 Wend. 414; 5 Mason. 195; 3 Kent's Com . 432.)
These principles are fully sustained and asserted in our state, after mature consideration and several conflicting opinions, in The Canal Com'rs v. The People, (5 Wend. 444;) Canal Appraisers v. Tibbetts, (17 Wend. 590;) Starr v. Child, (20 Id. 149;) and Com'rs of Canal Fund v. Kempshall, (26 Id. 404,) see also, 3 Kent's Com . 427; and they show a right in the state in navigable waters independent of and beyond the right of eminent domain.
Though such are the rights of the state, yet it is well settled that individuals may acquire and hold separate rights, sometimes conflicting and sometimes consistent with, and in subordination to, the rights of the state. Though since magna charta the sovereign power cannot make a grant of a navigable river that shall interfere with its public use, yet, it may grant the soil subject to the public right, and thus put the citizen in the place of the state as to the ownership, and give to him the same rights in a navigable river which the riparian owner has in the soil of rivers which are not navigable.
The senator who delivered the opinion of the court of errors, in 26 Wend. uses language so general that it may imply the right of the state to grant its whole interest, viz: "A navigable "river, that is an arm of the sea, the water and soil thereof." But it must be remembered that the case then before the court was in respect to a river not navigable, and his language is to be taken in connection with, and as modified by the facts of that particular case. For he surely could not have overlooked the fact that no such grant of a navigable river is now held good in England, unless by prescription or by a grant whose date can go behind magna carta. The very cases he refers to, of the Boyne in Ireland, in Dav. Rep. 152, and of the Severn in England, in 4 Burr. R. 21, 64, show this distinction.
This, however, is not very material, except to remove an impression which might otherwise obtain erroneously from the language used in that case.
The practice and the statute with us, as well as the rulings of the courts, show that the state is constantly in the habit of making grants of land under water in navigable rivers, and that those grants are regarded as vesting in the grantees the absolute ownership of the soil.
Our statute (1 R.S. 208) confers on the commissioners of the land office the power to grant so much of the lands under the waters of navigable rivers or lakes as they shall deem necessary to promote commerce, but the grants convey no other power than to erect docks and collect dockage. ( Laws of 1835, ch. 232.) And the legislature is in the habit of granting by special laws even more extended interests. Thus showing the uniform assertion by the state, of its right of ownership in the soil of navigable rivers.
But the question recurs: Has the riparian owner no right or interest in a navigable river, except what he can prescribe or show a grant for? Upon the answer depends the plaintiff's right to recover in this case.
He claims that he has a right to the free navigation of the river. He has that, undoubtedly, but he has it in common with all the other citizens of the state. If that right shall be interfered with by any erection, his remedy is by proceedings as for a public nuisance and not by an action for damages, unless that public nuisance shall work a private and peculiar injury to him. This is the extent of the right which he has by virtue of his capacity as a citizen of the state, and which is one ground of his claim as asserted in this case.
But as riparian owner he has something more, something that is valuable to him and belongs to him individually, and to the exclusion of any enjoyment by others in common with him. Let us pause a moment and see what that is, and see whether it is property for an injury to which he may recover damages.
1. He has a right to navigate the river, not merely up and down the stream, to which alone the court below confined its attention, but across the river, from the channel to his own land and from the opposite shore to the same land, involving herein the privilege of landing on his own bank from the channel and the opposite shore, and also the privilege of embarking himself and others, and the produce of his farm and other goods therefrom. And this privilege is not confined or limited to the opposite shore, but extends to all points on the river from its mouth to its source, or at least so far towards its source as it may be navigable for any one. So that if he is cut off from the channel he is cut off from the privilege of navigating from his land to all parts or any part of the river.
2. There are two inchoate rights, if I may so term them, which belong to his riparian ownership and of which he is deprived. One is the right to establish a ferry to the opposite shore, which under our statute belongs only to the "owner of the land through "which the highway adjoining the ferry shall run," (1 R.S. 526;) and the other is the right to a grant of the land under water, which under our statute cannot be made "to any person "other than the proprietor of the adjacent lands." (1 R.S. 232.)
Of his ferry right he is entirely deprived, because he has no access to the opposite shore from his land. And of his right to the land under water he is either totally or partially deprived. Totally, if the defendants become by their erections "the adjacent "proprietor," of which there may be a question; and partially, if he still continue such proprietor, because the defendants have taken possession of the very land under water, to a grant for which he had an exclusive or prior right under the statute.
This ferry right is, however, something more than a mere inchoate right under our statute. It is a right to establish a private ferry to the opposite shore, and is properly appendant to the soil, and it is also a right to control the terminus of a ferry from the opposite shore to his own. ( Angell on Tide Waters, 172; Bird v. Smith, 8 Watts, 434; Chess v. Manown, 3 Id. 219.)
The right to a grant of the land under water, includes the right to build wharves. In some of the states, — Massachusetts and Rhode Island, for instance — by special ordinance the riparian proprietor owns to low water mark, and in some cases below it. In those states, the right to build wharves is held to belong exclusively to the owner of the upland, and is valuable property, capable of being granted. ( Angell on Tide Waters, chap. 7; East Haven v. Hemingway, 7 Conn. 186.) It is the same in the vicinity of New-York city, where the land under water has been granted by the state to the city for public purposes.
3. He has the right of fishing in the river, and to use his land for the purpose of drawing and drying nets upon it, and erecting buildings to accommodate his fishery. The fishing in the channel of the river, by set nets by means of poles is prohibited by law, between the city of New-York and the dam at Fort Edward. (1 R.S. 688.) And it may be that there is no lawful mode of fishing in the channel so profitably as by drawing the nets on the shore, or on the flats, if there are any, in the middle of the river. From using his own shore, and from access to such flats from his land, he is alike deprived by the defendant's erection.
He has the sole right of fishing with nets or seines in connection with his own land. ( Hart v. Hill, 1 Whart. 138; Coolidge v. Williams, 4 Mass. R. 140; Brink v. Richtmyer, 14 John. 255; Lay v. King, 5 Day, 72.) This exclusive right has been considered in Pennsylvania, to give all the owners of land on the Schuylkill such great advantages that it has been hardly worth while for any other persons to attempt to fish with seines, and the right of property in front of the river is therefore valuable, and in some spots is rented for a considerable sum annually. ( Shrunk v. Schuylkill Nav. Co. 14 Serg. Rawle, 71.) No other person than the owner can use the bank for that purpose, unless by grant from him, ( Gray v. Bond, 2 Br. Bing. 667,) and such right is regarded as an easement, and may be presumed by twenty years' enjoyment. (28 Lond. Law Mag. 337; Cortelyou v. Van Brunt, 2 John. 357.)
This right of fishing means the exclusive right which every owner of land on the margin of a river has to use his own property for the purpose of drawing a seine, or practicing any other device for catching fish. (14 Serg. Rawle, supra.)
4. To his riparian ownership is attached the right to own as his separate, individual property, such additions to his land as may be gained from the river by alluvion or imperceptible increase. ( Hale, De Jure Maris, c. b; 2 Bl. Com . 261; King v. Yarborough, 3 B. C. 91; New Orleans v. U.S. 10 Peters, 662.) In this, is included the sea-weed that may be thrown up, in such manner as to become one of those marine increases by slow degrees, which belong to the adjacent owner. Its slow increase, and its usefulness as a manure, and a protection to the bank, Kent, Ch. J. says, in Emans v. Turnbull, (2 John. 322,) will upon every just and equitable principle, vest the property of the weed in the owner of the land.
5. He has a right to use the water of the river for the purposes of his farm, and to carry on his business on his land, whatever it may be; to irrigate his land, to water his cattle, to wash his sheep, for his aquatic fowls, to bathe in for health, or to sail upon for pleasure, c. c. In fine, to put the water which washes his bank to whatever uses his pleasure or his business may prompt; provided only, that he do not interfere with the jus publicum, or public right.
I do not understand whether the plaintiff is entirely cut off from the water of the river, or whether he is only cut off from the channel. That might be material on the question of the amount of damages, but it is not material as to the point now under consideration, for the principle which would allow another to cut him off from the channel, would allow of his exclusion entirely from the waters of the river.
6. Attached to his riparian interest, is also the right to lade and unlade on the bank.
In England, the right to establish ports for this purpose is claimed as a prerogative of the crown, but the king may not grant a liberty to unlade without the owner's consent, for that would be to prejudice the private right. ( Hale, de portibus, 73.) In this country public landing places may be established by grant or prescription, which can be discontinued only by the legislature. ( Commonwealth v. Tucker, 2 Pick. R. 44.) But the right to land generally belongs to the owner of the adjoining bank, and it is often valuable. He has been held to have the power to control the subservient and indispensable right of embarkation and landing, even at the terminus of a public road. ( Bird v. Smith, 8 Watts, 434.) That related to the owner of a private ferry, who it was ruled, had no right to land boats and passengers at the terminus of a public highway, between high and low water mark, on the opposite margin of the river, without the consent of the owner. ( Post v. Pearsall, 22 Wend. 425.)
7. He has a right of way over the soil between high and low water mark from his land to the channel of the river. And of that he has been or may be deprived, if such erections are allowable.
And finally, he has right to be, and to continue riparian owner, and to be protected against a third person's stepping in between him and the waters of the river, and without his consent assuming that riparian ownership, either in whole or in part, in his stead.
Such are the rights of the plaintiff. Those of the defendants can be much more briefly stated.
The defendants have no grant from the state to the land which they occupy. The state has not, as owner of the shore, made any conveyance to them. It has merely in the exercise of its right of eminent domain, conferred on them the power to enter upon these lands for a public use, in the same manner and by the same words by which it has authorized them to enter upon any lands of any private person along the whole line of the road.
If the state had granted as owner, it might at its pleasure have exacted or remitted compensation for the soil. But when exercising its sovereign power of authorizing property to be taken for public purposes, it cannot release the right which the individual owner has to compensation, nor discharge its agents from the duty of making it.
Such being the condition of the parties, and the wrong done by the defendants being admitted by the pleadings, the question arises, whether the rights of the plaintiff as above stated, are property in him, for an injury to which he may claim compensation, or whether the wrong which he has confessedly suffered is damna absque injuria, affording him no cause of action?
I remark at the outset that this does not depend so much upon the language of the particular statute to which the defendants refer for their authority to enter upon the land in question, as it does upon general principles of law. It is a mistake to suppose that the defendants are bound to make compensation only in the cases mentioned in the statute. Their duty in this regard springs from the constitution and has this limit only, namely, whether it is private property that is taken by them.
The provisions of the statute for the appraisement of damages, are not inserted there for the purpose of limiting the company's liability, but simply for the purpose of providing an easy and summary mode in which they may perform their duty. If they choose not to avail themselves of that mode of ascertaining what compensation they are to make, or if any party aggrieved do not see fit to resort to it, the company is by no means discharged of its liability to make compensation, for that flows from a law higher than the statute which spake them into being, and in solving the question before us, we must have resort to that paramount law and its just and established reading.
Under our institutions the right of eminent domain — and that be it remembered is all under which the defendants can claim in this case — is ever to be exercised in subordination to private right.
There is a conflict in the cases, (which perhaps I ought to pause a moment to consider,) upon the question whether the right of the state to the soil of navigable rivers, is incident to its sovereignty or a proprietary interest.
In The Com'rs of the Canal Fund v. Kempshall, (26 Wend. 419, 420,) the senator who delivered the opinion of the court intimates that even if the Genesee river was a navigable river, this state by its cession to Massachusetts of the ownership of a large tract of country, which included the river, conveyed the right of property, although it reserved the sovereignty. But in the case of Pollard v. Hagan, (3 How. U.S.R. 222,) the U. States supreme court held, that the United States by admitting Alabama into the union and ceding to it thereby the sovereignty ceded the right to the soil of navigable rivers, although they expressly reserved to themselves the ownership of all the lands they had previously been seised of in the state.
The first of these cases seems to go upon the idea which I have already alluded to as erroneous since magna carta, viz, that the state had a right to assign its sovereignty in navigable waters.
In Martin v. Waddell, (16 Peters, 367,) where the right to the fishing grounds in New Jersey was involved, the United States supreme court held that the principle that the king could not alienate the soil under navigable waters so as to give an exclusive right, must be regarded as settled by the case of Blundell v. Catteral, (5 B. Ald. 91.)
But this seeming conflict may not be of much importance, for here is no grant of a proprietary interest, but simply the exercise of the right of eminent domain, which is with us always subordinate to private right, so far as compensation is concerned.
I return to the question remaining for our consideration, namely, whether these rights of the riparian owner are property so that compensation must be made when it is taken for a public use.
A strong case on this subject is that of Bowman v. Wathen, (2 McLean, 376,) where Mr. J. McLean, after putting the Ohio river upon the same footing as navigable tide waters, says, "it is "enough to know that the riparian right on the Ohio river extends "to the water, and that no supervening right over any "part of this space can be exercised or maintained without the "consent of the proprietor. He has the right of fishery, of ferry, "and every other right which is properly appendant to the owner "of the soil; and he holds every one of these rights by as sacred "a tenure as he holds the land from which they emanate. The "state cannot either directly or indirectly divest him of any one "of those rights, except by the constitutional exercise of the "power to appropriate private property for public purposes." This language was used in a case kindred to that now before us, and in which it was ruled that the right to a ferry attaches to the riparian proprietor and cannot be taken from him without compensation. And the court say "Where land is bounded by "a water-course these rights [of riparian ownership] attach to "the proprietor. And it is immaterial whether the water course "be a navigable river or a smaller stream." "They are connected "with the soil and grow out of it, the same in principle "as an advowson or rent. It is an incorporeal hereditament and "lies in grant. ( Co. Litt. 335 b.) It is classed with real "estate and is subject to the laws which govern the realty. And "so is rent or an advowson." "The right is appurtenant to the "soil, but he [the riparian owner] may convey it and still retain "the fee in the land. And by such conveyance the grantee "holds the right which the statute was designed to protect." [The prior right to a ferry in the riparian proprietor.] "The "grantee of the right may in the strictest sense be considered "for all the purposes of the ferry the proprietor of the land on "the margin of the river. This right is real estate. It descends "to heirs as such, is subject to dower, and to all the incidents "of real property." This case was affirmed by the U.S. supreme court on appeal. See also 3 Kent's Com . 421, 5 th ed. note. In Kentucky this right, (as to ferriage) is held to be a franchise incident to the land and valuable as property. ( Carter v. Kalfus, 6 Dana, 43.)
In that case it was held that the right to ferriage was like that to portage, and was valuable property, and that the unsuccessful applicant for a ferry, who owned the land on the bank, was a party aggrieved under the statute by reason of this right.
The right to portage here spoken of was held in the case of The Charles River Bridge v. The Warren Bridge, (11 Peters, 638,) to be a franchise, and as such valuable property, liable to be compensated for when taken or injured for a public use. The case of Gardiner v. The Village of Newburgh, (2 John. Ch. 162,) was cited for the principle applicable to the question.
In that case the right to the rise of the water in other ways was also held to be property. There water running through the plaintiff's land was attempted to be taken out above it for a public use without compensation. The chancellor restrained the act by injunction, declaring it to be a clear principle of law that the owner of land is entitled to the use of the stream, and the law gives him ample remedy for the violation of this right.
In Boston and Roxbury Mill Dam Co. v. Newman, (12 Pick. R. 467,) a corporation was authorized by the legislature to create water power by penning tide water in a full basin, and excluding it from another which was to receive it through raceways, and the person who owned the flats in the receiving basin suffered an injury by the exclusion of the water from his land and was thereby prevented from beneficially using his land. It was held that he was entitled to compensation.
In three cases of the United States supreme court, City of Cincinnati v. Lessee of White, (6 Peters, 431;) Barclay v. Howell's Lessee,) Id. 498;) and New Orleans v. United States, (10 Peters, 662,) the right of ferriage, and the right to a landing place were held to be appurtenant to the adjacent land even in navigable rivers.
From this examination, I arrive very naturally at the conclusion, that the plaintiff has rights as riparian owner which the defendants have invaded, and that those rights are property, more or less valuable, for the destruction of, or injury to which, the plaintiff has a valid claim to compensation.
But the question does not arise whether the defendants ought ere this to have had the plaintiff's damages assessed in the manner pointed out in their act of incorporation, for this suit does not aim at ousting the defendants of their possession of the soil covered by their embankment, or at trying their title to it or right to occupy it. If it were so, it would be necessary for us to examine some of the cases which seem to deny the right of the state, either in its proprietary character as owner of the soil, or in the exercise of its right of eminent domain as the sovereign, to make any grant of the soil of navigable rivers.
I therefore purposely abstain from expressing any opinion as to the right of the defendants to occupy the land in question, until compensation be made.
But the action is to recover damages of them for such their occupation, and that does not involve the question whether they have any right to occupy at all, but whether for their occupation they are not bound to respond in damages; the action affirming the occupation rather than disaffirming it.
Besides, as no "land" of the plaintiff is taken by the defendants, though his "property" is, there may be a question whether the defendants could avail themselves of the privilege of having his damages appraised in the mode pointed out in the statute. Upon that point, also, I do not mean to express any opinion, it being sufficient to ascertain whether the plaintiff can recover any damages for the injury to such a right as it seems he has in this case, it being in the nature of a franchise or incorporeal hereditament, and not land or the soil itself.
The cases are numerous which show that he may. Thus for obstructing a water course: Anon. (4 Dallas, 147;) Shaw v. Crawford, (10 John. 236;) The People v. Canal Appraisers, (13 Wend. 371;) for diverting a water course, Gardner v. Newburg, ( supra;) Haynes v. Gault, (1 McCord, 543;) Palmer v. Mulligan, (3 Caines, 319;) for obstructing the navigation in a navigable river, Bacon v. Arthur, (4 Watts, 437;) Hogg v. Zanesville Man. Co. (5 Ham. 410;) for intruding on a several fishery, Carter v. Murcot, (4 Burr. 2162;) Hooker v. Cummings, (20 John. 90;) for destroying a landing place, (in addition to the value of the ground,) Exparte Rogers, (6 Cowen, 551;) for obstructing the free passage of the owner of an adjacent lot unto and upon the street, to and from his land, Fletcher v. Auburn Syracuse R.R. Co., (25 Wend. 462;) Chapman v. Albany Schenectady R.R. Co. (10 Barb. 367;) for injury to the franchise of a turnpike company, Seneca Road Co. v. Auburn Rochester R.R. Co. (5 Hill, 170;) In re Flatbush Avenue, (1 Barb. Sup. Ct. R. 294.)
The general doctrine is briefly stated by the reporter in his note to 6 Cowen, 552, where he opposes the principle of the canal appraisers, in allowing as damages only the value of the land for agricultural purposes, and excluding the value derived from a landing place and a fishery. He says, and I think very justly, "The value arises from the local situation and advantages "— the worth in market and the revenue derivable is to be "taken into the account." And it is also conceded by the court of errors in Comrs. of Canal Fund v. Kempshall, (26 Wend. 421.) "The proprietary interest in the water power is a necessary "incident to a freehold grant, and entitles the owner to "compensation for any appropriation or suspension of these prileges "for the public use." When private property of any description is destroyed, and its beneficial enjoyment is essentially impaired in the prosecution of public works, it is taken for public use. The state has no more right by an artificial erection like the state dam to overflow and destroy a valuable waterfall in a tributary stream without paying for it, than it has to overflow and destroy a valuable farm upon the adjacent shore. In principle they stand upon the same ground. The People v. Canal Appraisers, (13 Wend. 373.)
I do not regard the case of Lansing v. Smith, in 8 Cowen, 146, and in error 4 Wend. 9, as at all conflicting with the view I have taken of this case. There the riparian owner was not entirely cut off from his rights in the water, but by a public improvement, others were also permitted the enjoyment of similar rights, and thus the value of his was impaired, and the only question was, whether the right of eminent domain might be so exercised by authorizing a public improvement, which would extend to others the right which the riparian owner had from his position, enjoyed exclusively, but to which exclusive enjoyment he had no valid claim. And the court for correction of errors was careful not to affect the question now raised, and which was not raised in that case. The chancellor, who delivered the opinion of the court, says, "whether the legislature could grant the "right to any other person to build a wharf in front of the plaintiff's, "so as to destroy his entirely, is a question which it is not "necessary now to discuss."
And yet that is, as I understand it, the precise question which is raised in the case now before us. These defendants have made an erection in front of plaintiff's land, which has entirely destroyed his water right with all its privileges, and the question is, can the legislature authorize them to do so without making compensation?
For the reasons I have above given, I think they cannot, and I am, therefore, of opinion the plaintiff ought to recover.