
    Celia J. Donahue, App’lt, v. The State of New York, Resp’t.
    
      (Court of Appeals,
    
    
      Filed January 15, 1889.)
    
    1. Streets and highways—When dedication will not be presumed.
    The feeder of the Champlain canal running through the city of Cohoes had been constructed by the state many years ago, from the Mohawk river. It runs along the side of the said river about 180 feet and it is covered with timber and planks upon which earth is laid to the depth of
    1 several feet. Its surface has been made use of for more than twenty years by the public as a highway, and is known as Champlain street, in Cohoes, but it lias never been laid out as a street or highway by virtue of any municipal or other authority. Held, that a legal dedication of the' land as a public highway cannot be inferred; that the land was the property of the state, and as such was appropriated for the use described (as a. feeder to the canal), and never could have become the subject of any grant for the purpose of a public highway.
    2. Same—Negligence.
    The plaintiff received injuries from a fall into the feeder mentioned. Held, that the state did not owe any active legal duty to protect those who made use of its land, and owed the plaintiff no duty of active vigilance to see that she was not injured while upon the land for her own convenience.
    Appeal from an award granting nothing to the claimant made by the board of claims.
    
      P. D. Niver, for app’lt; Chas. F. Tabor attorney-general, for resp’t.
   Gray, J.

The appellant filed a claim against the state for personal injuries received from a fall into a feeder of the Champlain canal running through Cohoes. This feeder had been constructed by the state many years ago and runs from the Mohawk river, until it empties into the canal, along side of which it runs for some 180 feet. It is covered with timbers and planks upon which earth is laid to the depth of several feet. Its surface has been made use of for more than twenty years by the public as a highway, and it is known as Champlain street in Cohoes; but it was never laid out as a street or highway by virtue of any municipal or other authority. The appellant bases her claim to recover against the state on various grounds. She says that there was a user of the land for more than twenty "years, which constituted it a public highway and that, from acquiescence by the state in such a public use, there was imposed upon it a duty of vigilance as to its condition and as to the exercise of reasonable care for the protection of persons passing over it.

In awarding nothing to the claimant, we think the board of claims committed no error. Upon the trial it was conceded that no highway had ever been laid out at that point, and we think a legal dedication of the land as a public highway cannot be inferred. It could not be inferred on the theory of prescription, because that would depend upon a supposed grant, and a grant cannot be presumed where it would have been unlawful. Burbank v. Fay, 65 N. Y., 57. The land in question was the property of the state, and as such was appropriated for the use described as a feeder to the canal, and never could have become the subject of any grant for the purpose of a public highway. The most that can be said in favor of appellant’s contention is that the state suffered the use of this strip of its canal for purposes cf passage over or upon it; but it was merely by sufferance that it was so used, and not by any agreement or permission. Nor did the state owe any active legal duty to protect those who so made use of its land. It owed a duty to abstain from injuring the plaintiff, either carelessly or intentionally; but it owed her no duty of active vigilance to see that she was not injured while upon the land for her own convenience. Splittorf v. State, 108 N. Y., 214; 13 N. Y. State Rep., 472.

_ The commissioners found, as facts, that the claimant had lived for many years nearly opposite the place where she was injured, and was familiar with the condition and manner of construction of the feeder, and with its uses and manner of operation. This finding was warranted by the evidence, and we are concluded by it. These circumstances, in this case, operated further to relieve the state from any claim for the consequences of plaintiff’s use of its land, and charged the claimant with knowledge of its nature, uses and condition.

The award of the board of claims should be affirmed, with costs.

All concur, except Andrews, Earl and Peckham, JJ., dissenting.  