#### The Strawberry Island Company, Plaintiff, *v.*Benjamin L. Cowles et al., Defendants.

(Supreme Court, Brie Special Term,

February, 1913.)

Navigable waters — rights of Congress to control navigation — title or ownership to bed of Niagara river — injunctions.

Injunctions — acuons for — judgment — corporations — navigable waters.

The court will take judicial notice that the Niagara river is a navigable stream and constitutes an international boundary between the United States and the Dominion of Canada.

By the Hartford treaty and cession of 1786 between the state of New York and the state of Massachusetts, there was reserved to the state of New York a strip one mile in width, Commonly known as the mile strip, along the easterly side and for the whole length of the Niagara river, and the title to said strip thereupon became vested in the state of New York.

The state of New York is the owner in fee of the bed of the Niagara river and the deposits of sand and gravel therein, in trust for the public and for the benefit of commerce, subject always to the paramount right of the Congress to the control of the navigation of the waters of said river so far as may be necessary for the regulation of commerce with foreign nations and among the states.

Near the banks of Strawberry island, located in the Niagara river, the government maps and surveys show a depth of water of from two to’ four feet which, proceeding easterly, gradually deepens until in the main channel between the island and the main shore, east of the middle of the stream, it reaches an average depth of about twenty-five feet. The current in the river above the island is very swift but near the island becomes more sluggish, the natural result being that the river brings down quantities of sand and gravel valuable for commercial purposes which are deposited on the river bottom between the banks of the island and the main channel. After the commencement of an action by the owner of the upper part of the island to restrain defendant C and others from taking sand and gravel from the river opposite the island, by agreement of the parties, and an offer of judgment made by defendants, a final judgment was entered whereby defendants, their officers and agents, “ and all persons whomsoever * * * though not named herein,” were enjoined “ from excavating, removing, or otherwise interfering with the sand, gravel and other material constituting the shores and beach of the part of Strawberry island owned by the plaintiff [describing by metes and bounds the *280upper part of the island], and from excavating, removing or otherwise interfering with the shoals, bars and deposits of sand, gravel and other material, formed by the natural action of the Niagara river and deposited in the river-bed, and extending under the waters of the said river from the shores of said part of Strawberry island owned by the plaintiff to the thread of the Niagara river around said part of Strawberry island owned by the plaintiff, [describing by metes and bounds the upper part of the island] and from excavating, removing or otherwise interfering with the shoals, bars, and deposits of sand, gravel and other material, formed by the natural action of the Niagara river and deposited on the riverbed, and extending under the waters of the said river from the shores of said part of Strawberry island owned by the plaintiff to the thread of the Niagara river around said part of Strawberry island owned by the plaintiff.” Thereafter plaintiff, upon conveying his interest in the island, assigned said judgment to his grantee. On motion to punish, as for contempt, a corporation and others in its employ for disobedience of the injunction theretofore granted, they not only denied any violation thereof but the corporation by separate motions asked leave to intervene, to have it and the state of New York made parties defendant, to vacate and set aside the judgment entered in the action and for other relief. Held:

That the owners of the island acquired no title or ownership to the bed of the river or to the sand or gravel deposited, by virtue of t_eir ownership of the uplands, for as the tide does not ebb and flow in the river their title only ran to the mean water line of the stream.

That the decree entered in the action was too broad in its terms and provisions and prohibited the doing of things -which the court should not enjoin, but, nevertheless, was binding on the parties to the action.

That the injunction bound no one not a party to it, and in the circumstances could not be deemed as establishing or tending to establish as against persons other than the parties to the action any right in plaintiff or any other person to remove sand or gravel, the property of the state of New York, from the river-bed, without its license and consent.

That the corporation seeking to intervene, but asserting no grant or license from any state authority, has no other or different standing as to the controversy, so far as the right to the sand and gravel is concerned, than any other citizen of the state, and the motions of all parties will be denied.

Motion by the assignee of the plaintiff to punish certain persons for an alleged contempt of court. Also a motion by the James Harrigan Company to vacate and set aside the *281judgment heretofore entered in this action, and for an order directing the state of New York and the James Harrigan Company be made parties to the action with permission to defend, and for an order modifying the injunction provisions of said judgment.

Charles Diebold, Jr., in support of motion to punish for contempt.

Adalbert Moot and Charles L. Bullymore, in support of motion to intervene, etc.

Wheeler, J.

The plaintiff in this action was the owner of the upper or southerly portion of Strawberry island in the Niagara river, consisting of about fifteen acres of land. The distance from the easterly banks of the island to the banks of the Niagara river varies from 1,800 to 2,100 feet, making the distance to the center of the stream from 900 to 1,050 feet. The government maps and surveys show that the depth of the river varies at different points. Along and in the immediate proximity to the eastern banks of Strawberry island the waters are shallow. They increase, however, in depth as one proceeds easterly toward the main channel between the island and the main shore: The deepest part of the channel is east of the middle of the stream. Near the banks of the island, the maps show a depth of water of from two to four feet. This gradually deepens until in the channel it reaches an average depth of about twenty-five feet. The current in the Niagara river above the island is very swift; but near the island becomes more sluggish. The natural result is that the river brings down quantities of sand and gravel which are deposited on the river bottom between the banks of the island and the main channel. This is valuable for commercial purposes, and the real bone of contention out of which this litigation grows is over the right to take this sand and gravel from the river bed and dispose of it in the market.

The plaintiff brought this action against the defendant Cowles and five other parties defendant, to restrain them *282from taking sand and gravel from the river bed opposite the island. It appears that after the commencement of the suit, pursuant to some agreement reached between the parties to the litigation, and to an offer of judgment made by the defendants, a final judgment was entered in this action, whereby the defendants, their officers and agents, “ and all persons whomsoever * * * though not named herein,” were enjoined “ from excavating, removing, or otherwise interfering with the sand, gravel and other material constituting the shores and beach of the part of Strawberry island owned by the plaintiff ■ [describing by metes and bounds the upper part of the island], and from excavating, removing or otherwise interfering with the shoals, bars and deposits of sand, gravel and other material, formed by the natural action of the Niagara river and deposited in the river-bed, and extending under the waters of the said river from the shores of said part of Strawberry island owned by the plaintiff to the thread of the Niagara river around said part of Strawberry island owned by the plaintiff, [describing by metes and bounds the upper part of the island] and from excavating, removing or otherwise interfering with the shoals, bars, and deposits of sand, gravel and other material, formed by the natural action of the Niagara river and deposited on the river-bed, and extending under the waters of the said river from the shores of said part of Strawberry island owned by the plaintiff to the thread of the Niagara river around said part of Strawberry island owned by the plaintiff.”

Since the entry of this decree, the plaintiff has sold that portion of Strawberry island so owned by it to the Border Island Company, which company has also acquired title to the northerly part of the island. The plaintiff has also assigned to the Border Island Company the judgment in question. The Border Island Company now seeks to punish as for contempt the James Harrigan Company, and others in the employ of that company, for violating the decree of injunction, alleging they have taken sand and gravel from the river-bed in disobedience of the injunction in question. The parties brought into court not only deny any violation of the *283injunction, but the James Harrigan Company, by separate motion, asks permission to intervene, to have it and the state of New York made parties defendant; to vacate and set aside the judgment entered, and for other relief.

In the disposition of these motions, we must necessarily inquire into the question as to what rights the various parties before us have in the bed of the Niagara river, and to the deposits of sand and gravel made therein. We may take judicial notice that the Niagara river is a navigable stream, and constitutes an international boundary between the United States and the Dominion of Canada.

It is a matter of common knowledge that conflicting claims existed at the close of the Revolution between the states of New York and Massachusetts as to the ownership of the territory comprising western New York. Massachusetts claimed under and by virtue of English grants to the Plymouth Colony, and New York claimed by virtue of grants through the Duke of York. These differences were settled by the treaty and cession of 1786, made at Hartford, between New York and Massachusetts, by which Massachusetts was given the proprietary right to that part of the state west of what is known as the pre-emption line (running from Pennsylvania northerly through Seneca Lake), while the political sovereignty over the same territory was given to and acknowledged to be in the state of New York. There was, however, by this treaty, reserved to the state of New York a strip one mile in width (commonly known as the mile strip) along the easterly side and for the whole length of the Niagara tiver. Under this treaty, therefore, the title to this mile strip became vested in the state of New York.

In the very important case of Illinois Central R. R. Co. v. Illinois, 146 U. S. 435, the court said: “It is the settled law of this country that the ownership of, and dominion and sovereignty over lands covered by tide waters, within the limits of the several States, belong to the respective States within which they are found, with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the interest of the public in the waters, and subject always to the paramount right of *284Congress to control their navigation so far as may be necessary for the regulation of commerce with foreign nations and among the States.” Citing: Pollard’s Lessee v. Hogan, 3 How. 212; Weber v. Harbor Commissioners, 18 Wall. 57.

The court then proceeded and held that the same doctrine or rule of law in this country is applicable to lands covered by fresh water in the Great Lakes, over which is conducted an extensive commerce with different states and foreign nations.

In the later case of United States v. Chandler-Dunbar Water Power Co., 209 U. S., 447, the same doctrine was applied to lands in the Sault Ste Marie river between Lake Huron, and Lake Superior. It applies with equal force to the land under water in the Niagara river between Lake Erie and Lake Ontario.

The decisions of the courts of New York are in harmony with those of the United States courts. The question as to the ownership of the bed of the Niagara river was up in the case of Matter of Commissioners of State Reservation, 37 Hun, 537, where the court held that, inasmuch as the Niagara river was in fact navigable and constituted the natural boundary between the United States and Canada, the title to the bed of the stream remained in the state, and did not pass by grant to the riparian owners. The court in its opinion calls attention to the American doctrine to the effect that in rivers of this character navigable in fact, and forming natural international boundaries, grants of land bounded on, along or by such streams do not convey to the middle of the stream, but only to high-water mark, in this respect, the rule of law differing from the doctrine of the old common law established by the English courts.

After referring to the rule of the common law, the court, in the case last cited, said: *“*It is generally conceded that this doctrine of the common law *‘*is inapplicable to the vast fresh water lakes or inland seas of this country, *or streams forming the boundary lines of States.’*And in the Tibbits case, the chancellor, while supporting the application of the common-law rule to the rivers in this State, adds that a different rule must probably prevail as to those streams *285which form the natural boundaries between us and a foreign nation, and supports that proposition by very good reasons founded neither in the common or civil law, but in reasons national and international.”

The court then added that: “ The line between the United States and Canada is located in the center of Niagara river. (Treaty of 1783; 8 U. S. Statutes at Large, 55, and that of Ghent in 1814, id. 221, and such is the boundary of Niagara county. Laws of 1808, Chap. 60.)” See also; Kingman v. Sparrow, 12 Barb. 201, where the same rule of law is asserted; also, Morgan v. King, 30 Barb. 9-16; Matter of Jennings, 6 Cow. 536, and note; Champlain & St. Lawrence R. R. Co. v. Valentine, 19 Barb. 484-490:

The general doctrine of the common-law rule that grants bounded by streams carry to the center, or *usque ad filum aquae,*has no application to the great inland lakes, or rivers forming territorial boundaries, was again discussed and approved in the very recent case of Fulton L. H. & P. Co. v. State of New York 200 N. Y. 400-413.

We deem it established by the highest authority that the state of New York is the owner of the fee of the bed of the Niagara river. It has repeatedly exercised the right of ownership by granting and conveying, to the upland or riparian owners, land under water for the purpose of building docks, wharves and piers in the interest of commerce.

We, therefore, must conclude that the state is to be deemed the owner in fee of the bed of the Niagara river. This ownership, however, is one in trust for the public, and for the benefit of commerce, and subject always to the paramount right of the Federal Congress to the control of the navigation of the waters of the river so far as may he necessary for the regulation of commerce with foreign nations and among the states.

In Illinois Cent. R. R. Co. v. Illinois, 146 U. S. 435, 452, 453, the court, on this subject, said: “That the State holds the tide to the lands under the navigable waters of Lake Michigan, within its limits, in the same manner that the State holds title to soils under tide water, by the common law, we have already shown, and that the title necessarily carries with it *286control over the waters above them whenever the lands are subjected'to use. But it is a little different in character from that which the State holds in lands intended for sale. It is different from the title which the United States hold in the public lands which are open to pre-emption and sale. It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties. The interest of the people in the navigation of the waters and in commerce over them may be improved in many instances by the erection of wharves, docks and piers therein, for which purpose the State may grant parcels of the submerged lands; and, so long as their disposition is made for such purpose, no valid objections can be made to the grants. It is grants of parcels of lands under navigable waters, that may afford foundation for wharves, piers, docks and other structures in aid of commerce, and grants of parcels which, being occupied, do not substantially impair the public interest in the lands and waters remaining, that are chiefly considered and sustained in the adjudged cases as a valid exercise of legislative power consistent with the trust to the public upon which such lands are held by the State. But that is a very different doctrine from the one which would sanction the abdication of the general control of the State over lands under the navigable waters of an entire harbor or bay, or of a sea or lake. Such abdication is not consistent with the exercise of the trust which requires the government of the State to preserve such waters for the use of the public. The trust devolving upon the State for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can he disposed of without any substantial impairment of the public interest in the lands and waters remaining.” See, also, Saunders v. N. Y. C. & H. R. R. R. Co., 144 N. Y. 75-85.

*287It must be manifest, therefore, that the owners of Strawberry island acquired no title or ownership to the bed of ¡Niagara river, or to the sand and gravel deposited, by virtue of their ownership of the uplands, Their title stopped at the high-water mark, or rather, inasmuch as the tide does not ebb and flow in this river, to the mean water line of the stream.

The decree entered in this action was far too broad in its terms and provisions, and prohibited the doing of things which the court should not, in our opinion, enjoin. ¡Nevertheless, so far as the parties to the action are concerned, it is undoubtedly binding.

It is claimed, however, by plaintiff’s counsel that this action was to protect the southerly fifteen and fifty-five one-hundredths acres of Strawberry island, and the riparian rights appurtenant thereto, from the unlawful acts of the defendants and others, who, without the consent and against the protest of the plaintiff, were removing from the bed of the river material in such a manner as to undermine the banks of said island, and cause large portions to break off and sink into the river, thereby doing great damage to the plaintiff, and also interrupting the natural processes of accretion by which additions to said land were continually being made.

It undoubtedly is true that the owners of the uplands would be protected against the acts of parties taking from the river material so immediately adjacent thereto as to take away its natural support, and cause it to fall into the river. The argument that this justifies the contention that, therefore, the plaintiff has the right to enjoin the taking of sand and gravel from the river bottom far out in the stream, does not follow.

To endanger the banks of the island, the dredging or sucking up of sand and gravel from the river-bed must be done approximately close to the shore. Certainly there is no suggestion in the affidavits read on this motion showing or tending to show that the removal of sand and gravel from the river bottom far out into the stream in the least injured or imperiled the banks of the island. All that is *288claimed by the plaintiff is that the particular act complained of was done at a point about sixty feet westerly of the center line of the river, which judged from the maps must have been in the neighborhood of 1,000 feet from the island. Certainly it cannot be fairly claimed that dredging at this distance in any manner endangered the banks of the island. It was not necessary to protect the banks that the injunction should restrain operations clear to the middle of the river.

We are led to believe that the court would not have enjoined, without qualification, the removal of sand and gravel from the river bed had the defendants in this action contested the question, and not stipulated that judgment to that effect might be entered. Having voluntarily offered judgment, and agreed the decree in question might be entered against them, the defendants themselves are doubtless bound by its provisions. But the injunction decree can bind no one who is not a party to it, nor can it be deemed, under the circumstances, as establishing, or tending to establish, as against persons other than the parties to the action, any right in the plaintiff to remove sand and gravel from the river-bed. This sand and gravel is clearly the property of the state of Hew York. Heither the plaintiff, nor the defendants nor the James Harrigan Company, or any other person or party, as against the state of Hew York, has any right to these deposits, and, without the license and consent of the state, has no technical right to remove and appropriate the same.

For the same reasons, the James Harrigan Company cannot be said to have any interest in the subject-matter of this litigation, which entitles it to be made a party to this action. The state, and the state alone, owns .the fee of the bed of the river and the deposits made thereon, subject always to the paramount right of the Federal Government to deepen and improve the channel, and make other improvements in the interest of commerce and navigation. Subject to these rights of the Federal Government, the state alone has the right to intervene, and assent to, or permit the removal of the sand and gravel in question. The James Harrigan Company has no other or different standing as to the *289controversy, so far as the right to the sand and gravel is concerned, than any other citizen of the state. ' It asserts no grant or license from any state authority.

This leads us to the conclusion that the motion of the James Harrigan Company to vacate the judgment, and to intervene and defend this action, must be denied. It also leads necessarily to the conclusion that the motion to bring in the state as a party defendant must also be denied.

This court has no power to bring in the state. The state cannot be sued, or brought into a suit. Whatever it does, it must do of its own volition.

The decree is attacked as carrying out some arrangement or agreement claimed to be in violation of .the federal and state anti-trust statutes. Conceding such to be the case, the moving' parties are in no position to raise it in this action. If the parties have violated those statutes, the remedy is by separate action or criminal prosecution for their acts, and not by intervention in this.

• This brings us to the further consideration of the motion to punish for contempt. Hone of the parties sought to be punished are parties to the action, except the Perry Sand Company. The others were not bound by the decree of injunction. They cannot be punished for disobedience of the decree, simply because the decree purported to restrain not only the defendants, but *“*all persons whomsoever though not named herein,” for such parties have not had their day in court. Hone of the persons sought to be punished can be disciplined for disobedience of the decree unless it be made to appear that they were in fact acting as the agents of, or in collusion with, the actual defendants.

We are, however, satisfied from the affidavits, that no violation of the injunction was intended by any one, if in fact committed. All the persons sought to be punished deny that any dredging was in fact done within prohibited lines. We recognize that it is possible they may be mistaken in this statement, just as it is possible the plaintiff’s witnesses may be mistaken on their part as to the exact location of the tug and vessels doing the work. It goes without saying that it is not always easy to determine exact locations on the *290water. At most, all that is claimed is that the vessel complained of was some sixty feet over the line. Assuming such to have been the fact, we are satisfied the taking of gravel west of the center line of the river was accidental and not intentional. But even though sand and gravel were taken from the river bottom as claimed by the plaintiff, in that fact there is nothing calling for the court to punish for contempt even the Perry Sand Company. The unintentional violation of an injunction order presents no case for the court to vindicate itself or its decree. Eo case is presented for indemnifying the plaintiff or its assignee and grantee for loss, for they have suffered no damage even though sand and gravel have, been taken from the river, because the parties have no exclusive property or rights in such sand and gravel.

For these reasons, the motions of all parties are denied, without costs to either as against the other.

Motions denied, without costs.