#### Mary R. Lewis, Appellant, *v.*The City of Utica, Respondent.

Fourth Department,

October 1, 1913.

Waters and watercourses — action for ejectment — title to bed of Mohawk river — conveyance by British Crown.

In an action of ejectment against the city of Utica, the plaintiff claimed title through a grant by King George the Second of Great Britain, dated January 3, 1734, to a portion of land formerly constituting a part of the bed of the Mohawk river, a navigable stream, but now situate within the corporate limits of the defendant. In 1891 a statute became effective bringing the premises in question within the corporate limits of the defendant, and on the same date a statute became effective changing the course of the Mohawk river, leaving the premises in dispute dry land. The city succeeded to whatever title and interest the State of New York had in the bed of the old channel of the river.

Held, that the title to the bed of the Mohawk river at the date of the grant was in the King of Great Britain with power to grant and convey the same and that by his grant to plaintiff’s predecessor in title he conveyed the same; that the defendant never received title thereto, and a judgment in its favor should be reversed and judgment directed in favor of the plaintiff.

Kruse, P. J., and Robson, J., dissented, with opinion.

Appeal by the plaintiff, Mary R. Lewis, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 17th day of January, 1913, upon the decision of the court after a trial before the court without a jury.

*Theodore L. Cross,*for the appellant.

*Seward A. Miller,*for the respondent.

*161Merrell, J.:

This action is in ejectment, plaintiff alleging that she is the owner and entitled to the possession of a small parcel of land that formerly constituted a part of the bed of the Mohawk river and now situate within the corporate limits of the city of Utica. The defendant, the City of Utica, is in possession of the lands claimed by plaintiff, said city claiming title thereto and the right to the exclusive possession thereof. Plaintiff claims title and bases her right to possession of the disputed premises upon a certain grant made in 1734 by King George the Second of Great Britain, through the English Colonial Government in the Province of New York to Joseph Worrell and others, by deed or letters patent, dated January *2,*1734. This grant was known as Cosby’s Manor, taking its name from the then English Colonial Governor of New York, and prefixed to the grant is the certificate of Governor Cosby and the other officers of the Colonial Government recommending the grant and describing the lands so to he conveyed as a part of a larger tract or parcel of land. The larger tract or parcel of land is referred to as follows: *“*All that Tract of land in the Mohawks Country on both sides of the river between the Great Fflat or Plain above the fall and the Land granted to the wife & Children of Johan Jurck East as also another Tract of land hegiryiing on the West side of the Granted Lands on both sides of the said River running up Westward to a certaine Creek Called Sadahqueda *and in breadth in the woods on both sides of the said River Six English Miles.”*

The tract or parcel of land conveyed is described in such certificate and also in the grant or letters patent proper in substantially the same words and the following is the description as recited in the letters patent: *“A*Certaine Tract or Parcel of Land Scituate lying and being in the County of Albany *on both sides of the Mohawks River*beginning at a Certain place ■ *on the South side of the said Mohawks River*and the West side of a brook called Sedaghqueda where the said Brook falls into the said River and runs thence South thirty-eight Degrees West two hundred and thirty-eight Chains then South fifty-two Degrees East four hundred and eighty-three *162Chains then North thirty-eight Degrees East four hundred and eighty Chains then North fifty-two Degrees West four hundred & eighty-three Chains and then South thirty-eight Degrees West two hundred and forty-two Chains to the place where the same Tract began Containing twenty-two thousand Acres of Land and the usual Allowance for Highways,” etc.

Then following the usual words of a grant the tract or parcel of land conveyed is described as follows: *“*All the said Tract or Parcell of Land so set out as aforesaid and so abutted Bounded and Described as is above Expressed Concerning the same Containing in the whole twenty-two thousand Acres of Land besides the usuall Allowance for Highways together with all and Singular the woods and underwoods Trees Timbers feedings pastures Meadows Marshes Swamps ways *waters water Courses Rivers*brooks Rivulets Runs and *Streams of water*Ponds Pools fishings fowlings hunting and hawking Mines & Minerals whatsoever (except Gold Mines and Silver Mines),” etc.

The plaintiff traces her title from said Cosby’s Manor grant through various mesne grantors to herself.

As before stated, the disputed territory formerly was a part of the bed of the Mohawk river and became valuable as land only upon the course and channel of the said river being recently changed, and through certain legislative enactments whereby it is claimed that the abandoned bed of the Mohawk river, including the disputed parcel, became the property of the city of Utica.

Prior to March 20, 1891, the disputed premises were within the bounds of the town of Deerfield,- Oneida county. On said last-mentioned date chapter 92 of the Laws of 1891 became effective bringing the said premises within the corporate limits of the city of Utica. On the same date chapter 93 of the Laws of 1891 was enacted and became effective straightening the Mohawk river and thereby changing its course to a location about half a mile northerly from the *locus in quo,*thus leaving the old channel, including the disputed premises, dry land. By virtue of the aforesaid legislation and through chapter 579 , of the Laws of 1901 and chapter 131 of the Laws of 1907, the city of Utica succeeded to whatever title and interest the State *163of New York had in the bed of the old channel of the river, including the *locus in quo.*It must be admitted that it was the intent of the Legislature and that the legislation above mentioned was appropriate and sufficient to convey to the city of Utica any title which the State of New York had to the old river channel at the time said several acts were passed. But the real issue is as to whether the State then had any interest which it could convey; whether or not the Crown by its Cosby’s Manor grant above mentioned had granted the bed of said river to plaintiff’s predecessor in title.

Upon the trial of this action the learned trial justice held that at the time of the grant of Cosby’s Manor by King George the Second of Great Britain the *jus privatum*or title to the bed of the Mohawk river reposed in the king, subject to the *jus publicum*or right of the public to use the same and the water for all proper purposes of navigation, and, therefore, that the king had the clear right to include in his grant the bed of the river subject to the public use of the stream flowing over said bed. To that extent the learned trial justice sustained the contention of the plaintiff, but denied her the relief which she seeks by this action upon the sole ground that said Cosby’s Manor grant, under the interpretation and construction of the learned trial justice, did not convey the bed of said fiver, and that the same eventually ¿ame to the People of the State of New York, who succeeded to all the rights of Great Britain at the close of the Revolutionary war.

It, therefore, seems to me that this appeal presents two questions for our determination: *First,*was the title to the bed of the Mohawk river on January 2, 1734, in King George the Second of Great Britain, with power to grant and convey the same; and, *second,*did the king, by the letters patent above referred to, convey the bed of said river, including the parcel in dispute, to Joseph Worrell, plaintiff’s predecessor in title ?

In the orderly disposition of this case we will consider these questions in the order named.

As to the title of the Crown of England to the bed of the. Mohawk river, it will be observed that at the time of this grant and for more than sixty years there had been no dominion or sovereignty over any of the territory through which the Mohawk *164river flowed, except that of Great Britain, and, therefore, the common law of England must be deemed as controlling the grant under this particular patent. Under the English common law the title to the bed of all navigable arms of the sea and navigable rivers throughout the kingdom was in the king. Such lands under water were his private property, which he could dispose of as he saw fit without restraint or hindrance from the law. These lands under said waters were known as the *jus privatum*and were held and conveyed by the king in his private individual capacity. The navigable waters themselves the king held as sovereign, but not in an individual capacity. He was trustee thereof for the public and said waters were not subject to private ownership nor were they subject to grant, being *jus publicum.*The *jus privatum*or king’s title to the bed of the navigable waters in his kingdom was always subject to the *jus publicum*or right of the public to use the same and the waters thereupon. *(Lewis Blue Point Oyster Cultivation Co.*v. *Briggs,*198 N. Y. 287.)

The Mohawk river is a fresh-water stream, and while to some extent navigable it is not an arm of the sea, nor does the tide ebb or flow therein. It is difficult to appreciate how the king at the time of granting these letters patent could have regarded the Mohawk river as being an arm of the sea or navigable river where the tide ebbs and flows. If it did not occupy the status of such waters in England then the public had no rights therein and the bed of said river passed to the patentee under said grant as the bed of a fresh-water stream within the bounds of the grant. *(Rogers*v. *Jones,*1 Wend. 237; *Trustees of Brookhaven*v. *Strong,*60 N. Y. 56.)

At an early day the courts of our State gave to the Hudson river above tide water and the Mohawk river the character of navigable waters and extended to such fresh-water streams the law applicable to arms of the sea and navigable rivers of England where the tide ebbs and flows. Assuming the soundness of such doctrine, the title to the bed of such navigable waters was, at the time of this grant, in the king as *jus privatum,*subject to conveyance by him, while the use of the waters remained with the public as *jus publicum*and was inalienable.

The cases of *People ex rel. Loomis*v. *Canal Appraisers*(33 *165N. Y. 461); *Crill v. City of Rome*(47 How. Pr. 398); *People*v. *Page*(39 App. Div. 110); *Lee*v. *Childs*(140 id. 699) and others which in effect hold that the title to the bed of the Mohawk river is in the People of the State, are invoked in support of defendant’s position. I do not think those decisions authorities which are controlling in the case at bar. Those decisions may be attributed to Dutch occupation, at which time the civil law obtained, and under which the title to the bed of all navigable streams was in the government. *(Canal Appraisers*v. *People,*17 Wend. 571, 573.) The civil law prevailed in the Netherlands during the occupancy of the Dutch. The courts have, therefore, concluded that in all cases along the Mohawk and Hudson rivers in which the original patents were derived from the Dutch Government, the beds of those rivers were not thereby conveyed, but passed from the Dutch to the English and from them to the State of New York at the close of the Eevolution. As stated in the able opinion of Judge Gray in *Fulton Light, Heat & Power Co.*v. *State of New York*(200 N. Y. 400, 413): *“*The part of the Hudson river above the ebb and flow of the tide and the Mohawk river, a fresh-water stream, in grants made to settlers under the Dutch Government, were excepted and, upon the English succession, the beds of those waters, never having been conveyed, vested in the crown, as lands not theretofore granted.”

Thus it seems clear to me that the Crown of England, having obtained by the Dutch cession the bed of the Mohawk river, thereafter held the same as his individual property and had a cl'ear right to grant and convey the same. If he did by the Cosby’s Manor grant convey to plaintiff’s predecessor in title the bed of said stream, then the People of the State could never have received title thereto, because the same had been cut off by said grant long prior thereto.

Indeed, many of the decisions holding that the title to the bed of the Hudson river above tide water and of the Mohawk river was in the People of the State were in cases arising under Dutch grants. The grant of Cosby’s Manor was an English grant made long after the termination of Dutch rule in New York, and it seems to me that the common law of England should govern rather than the civil law. Nor do I believe *166that the *dicta*of decisions made a century and over after the granting of letters patent should be regarded as controlling under the doctrine of *stare decisis.*In none of those cases, except the *Lee*case, was the same patent involved as is in the case at bar. In that case I think the referee erroneously held that the title to the bed of the river could not have been conveyed by the Crown. That the Crown then had the power to so convey seems indisputable.

I am, therefore, of the opinion that at the time of the grant in question the King of Great Britain had the right to grant the bed of the Mohawk river.

Under the construction given by the courts of this State concerning conveyances of land along the Mohawk river, it is to be presumed that the title to the bed of the stream does not reside in the riparian owner unless it appears from the original grant or patent under which such owner claims that it was the clear intention of the sovereign to convey the bed of the stream. *(Canal Appraisers*v. *People, 17*Wend. 571, 574.)'

And in such event the public are deemed to have the full right to enjoy the waters of the Mohawk river for the purposes of navigation, including the right to divert the waters of the stream for navigation outside of its natural bed.

I have found no case which presumed to take from an owner having a clear grant of the bed of the Mohawk from the English Crown the title thereto. Even in the case of *People ex rel. Loomis*v. *Canal Appraisers*(33 N. Y. 461, 500) Judge Davies recognizes the validity of a positive grant of the bed of a navigable river, as against the State, and in discussing *Commissioners of Canal Fund*v. *Kempshall*(26 Wend. 404), involving the bed of the Genesee river, concededly a navigable stream, makes use of this significant language: “There was evidence of a positive grant, such as would convey the fee of the bed of a navigable river where the tide ebbed and flowed. Such being the fact in that case, it, beyond all dispute, carried the case in favor of Kempshall.” Kempshall was claiming through a grant which included the bed of the Genesee river.

In the absence of an absolute grant and with regard to such portions of the beds of the Hudson below and above tide water and of the Mohawk river as had not been actually granted by *167the Crown before the title came to us, it was perhaps not strange that the courts should establish with reference to riparian owners along said streams a different rule from that applicable to riparian owners along other fresh-water streams. These two streams constituted the great water highway across a large portion of the State, and it was not unreasonable to establish the rule that grantees would be presumed to take no title to the bed of the stream, but that the title thereto should remain in the People, whereas grantees along other fresh-water navigable rivers would be presumed to take title to the centers or threads of the streams. But no such rule can be applicable to such part of the beds of said streams as were absolutely granted prior to American accession and in which the People of the State never had any interest. *(Smith*v. Bartlett, 180 N. Y. 360, 365.)

But regardless of the suggestion last made I am of the opinion that the Crown at the time of granting the letters patent in question had ample power to convey the bed of the Mohawk river, including the *locus in quo,*and that if the letters patent actually granted the bed of said stream along with other lands conveyed, at no time thereafter did the People of the State have or acquire any interest therein».

This brings us to the construction of the grant under which plaintiff claims. In the grant the lands are described as follows: “ A Certaine Tract or Parcel of Land Scituate lying and being in the County of Albany *on both sides of the Mohawks River*beginning at a Certaine place *on the South side of the said Mohawks River*and the West side of a brook called Sedaghqueda where the said Brook falls into the said River and runs thence South thirty-eight Degrees West two hundred and thirty-eight Chains then South fifty-two Degrees East four hundred and eighty-three Chains then North thirty-eight Degrees East four hundred and eighty Chains then North fifty-two Degrees West four hundred '& eighty-three Chains and then South thirty-eight Degrees West two hundred and forty-two Chains to the place where the same Tract began Containing twentyffwo thousand Acres of Land and the usual Allowance for Highways,” etc.

It will thus be noted that the land described is in form *168almost a square, being a rectangle 483 chains on one side by 480 chains on the other, making 231,840 square chains or 23,184 acres in the tract. After deducting for the “ usual Allowance for Highways ” the customary five per- cent, or a little over 1,159 acres, we have an excess of less than 25 acres over the number of acres mentioned in the grant, so remarkably close as to at once give the impression that in making a grant of wild lands of such magnitude the acreage of 22,000 was an approximation. Again, it will be observed that the description starts *on the south side*of the Mohawk river and the west side of a brook called Sedaghqueda where said brook falls into the said river, and then is described a rectangle the northerly and southerly sides of which were 483 chains in length, the easterly and westerly sides being 480 chains in length. Both the easterly and westerly lines cross *the Mohawk river.*That the grantor intended to convey the bed of the river is clearly shown by the final line running from the 1 northwesterly corner “two hundred and forty-two Chains to the place where the same Tract began.” *This line crossed the river*and added to the first line in the description, 238 chains, makes the westerly line 480 chains in length, the same as the easterly line.

Following the usual words of a grant, the lands conveyed are described as follows: “All the said Tract or Parcel! of Land so set out as aforesaid and so abutted Bounde4 and Described as is above Expressed Concerning the same Containing in the whole twenty-two thousand Acres of Land besides the usual. Allowance for Highways together with all and Singular the woods and underwoods Trees Timbers feedings pastures Meadows Marshes* Swamps ways *waters water Courses Rivers*brooks Rivulets Runs and *Streams of water*Ponds Pools fishings fowlings hunting and hawking Mines & Minerals whatsoever (except Gold Mines and Silver Mines),” etc.

Considering the acreage conveyed and upon a fair interpretation of the language of the grant, I am convinced that the grantor intended to include in his conveyance the bed of the Mohawk river.

The courts, morever, have long since set at rest any question as to lands under waters included within the bounds of a grant *169being thereby conveyed. . In the leading case of *Rogers*v. *Jones*(1 Wend. 237, 255), Woodworth, J., thus lays down the rule: “ It cannot be doubted, that when a patent or grant conveys a tract of land by metes and bounds, the land under water as well as other land will pass, if the land under water lies within the bounds of the grant.” (See, also, *Trustees of Brookhaven*v. *Strong,*60 N. Y. 56, 71.) This doctrine is recognized in *De Lancey*v. *Piepgras*(138 N. Y. 26, 36).

It, therefore, seems that not only, by a reasonable construction of the language used in the grant, the Crown intended to convey the bed of the stream along with the lands described as “on both sides of the Mohawks River,” but having included said river within the bounds of the grant under the decisions mentioned the grant must be deemed to have conveyed the bed of said stream. I am, therefore, of the opinion that the plaintiff is entitled to the relief which she seeks in this action, and that the judgment of the court below should be reversed. In conformity with the requirements of section 131Y of the Code of Civil Procedure (as amd. by Laws of 1912, chap. 380), the findings of fact found by the trial court, numbered II to IX inclusive, should be stricken out and in place thereof the order of reversal should contain findings of fact substantially conforming to those contained in plaintiff’s proposed decision numbered from 1 to 9 inclusive; the order to be settled on two days’ notice.

The judgment should be reversed and judgment directed in favor of the plaintiff, with costs in this court and the court below to the plaintiff. The findings of fact numbered II to IX inclusive, as found by the trial court, are disapproved and stricken out and in place thereof findings are made by this court substantially conforming to those contained in plaintiff’s proposed decision numbered from 1 to 9 inclusive.

All concurred, except Kruse, P. J., and Robson, J., who dissented in an opinion by Kruse, P. J.

Kruse, P. J. (dissenting):

I concur with Mr. Justice Merrell that if the Mohawk river bed is included in the Cosby Manor grant, the city of Utica acquired no title thereto from the State; but I am of the opinion *170that.under the rule of law as declared by the Court of Appeals in the case of *People ex rel. Loomis*v. *Canal Appraisers*(33 N. Y. 461), peculiarly applicable to the Hudson and Mohawk rivers, the language contained in the letters patent is not sufficiently specific to cover the title to the bed of the river. While that decision has been many times referred to I am not aware that the decision or the learned and exhaustive opinion has ever been questioned. No such distinction as is now sought to be made between a Dutch grant founded upon the civil law and an English grant founded upon the common law is therein made. Indeed, it is very apparent from a reading of the opinion that if the common law of England had been strictly adhered to the decision would not have been made in favor of the State. It is therein expressly declared that the common law of England was only adopted in our State so far as it was applicable to our conditions.

While I might reach a different conclusion if the question were an open one, it seems to me that the *Loomis*case is controlling. I, therefore, vote for affirmance.

Robson, J., concurred.

Judgment reversed and judgment directed in favor of the plaintiff, with costs in this court and the court below to the plaintiff. The findings of fact numbered H to IX inclusive, as found by the trial court, are disapproved and stricken out and in place thereof findings are made by this court substantially conforming to those contained in plaintiff’s proposed decision numbered from 1 to 9 inclusive. Order to be settled before Mr. Justice Merrell on two days’ notice.