#### The People of the State of New York, Plaintiff, *v.*The People’s Coal Co., of Plattsburgh, and Frank Cassavoi, Defendants.

(Supreme Court, St. Lawrence Special Term,

September, 1900.)

Riparian owners — Rights, in a lake, against the State — Injunction.

A temporary injunction should not be granted, at the instance of the State of New York, to restrain riparian owners from continuing to construct a dock in shallow waters of Lake Champlain, out of the pathway of customary navigation, as such owners have a right to have access to the lake and to build a dock, and the State cannot restrain them unless the dock is a nuisance or an obstruction to navigation as an actuality and not as a mere possibility.

Motion to vacate a temporary injunction granted in an action brought to restrain the erection and maintenance of a dock on the western shore of Lake Champlain.

John C. Davies, Attorney-General, for plaintiff.

Wheeler *&*Woodward (S. L. Wheeler, of counsel), for defendants.

Russell, J.

Near the village of Plattsburgh, N. Y., on the western shore of Lake Champlain, the defendants, as' riparian owners, have partially constructed a dock extending into the lake, for landing coal and other commodities. The dock is far out of the usual line of navigation, and could only be an obstruction to a vessel of very light draught, sailing over an unfrequented course without the aid of the light of day or a stationary artificial light on the pier. The defendants have only the right of riparian owners, no grant of the lands under water having been received from the State. The Attorney-General brings this action for the People to restrain the erection and maintenance of the dock, and has obtained a temporary injunction which is now sought to be set aside.

. The paramount use of navigable waters is for the public, and no private interests can obstruct. Congress has the superior power to prescribe the use of those waters so far as commerce with other States and foreign nations is concerned. Subject to this power, the State in which the navigable waters lie has the title to the bed *479for the use of the public. Illinois Central R. R. Co. v. Illinois, 146 U. S, 387.

But the riparian owner has the right of free access for landings, wharves and piers for the use of the public and himself, which cannot be taken from him by the public, except by due compensation. These rights, of course, are subject to the general rules and laws of the Legislature for the protection of the public under general and fixed laws, and not special enactments against a private wharf. Yates v. Milwaukee, 10 Wall. 497.

Hence, subject to the right of the State to improve navigation and the power of Congress to provide for the uses of commerce, the owner of land bounded upon navigable water may obtain damages for any obstruction which prevents his right of access to the navigable portion of the stream and his power to construct a landing or wharf. Rumsey v. N. Y. *&*N. E. R. R. Co., 133 N. Y. 79.

These rights pertain even to riparian owners on New York bay. City of Brooklyn v. Mackay, 13 App. Div. 105.

And the State cannot compel them to remove a wharf even though they have no grant from the State, unless the wharf is a nuisance or obstruction as an actuality, and not a mere possibility. People v. Mould, 37 App. Div. 35.

The test, therefore, seems to be whether, at the time of its construction and maintenance, the wharf lies in the pathway of customary navigation, or so near to it as to make its presence dangerous. If it does, or if the State or Congress has intervened by general law, the wharf is a purpresture, or a nuisance, and may be abated. If not, the riparian owner has the incidental power to use his water front for the service of the public and himself, and is not condemned to let it lie idle for the benefit of nobody, and to his own great detriment.

In the case at bar the position of the defendants on the question of fact as to obstruction is much strengthened by their expenditure of considerable sums of money in the confident assumption that their wharf is not in the way, and with the assured result of a total loss in case a trial of the issue should demonstrate the fact to be against them. And I do not see how the interests of the People of the" State maybe harmed by the maintenance of the wharf until trial and judgment. Injunction vacated, with motion costs to abide the event.

Injunction vacated, with costs.