
    MATTER OF STATE RESERVATION AT NIAGARA.
    
      N. Y. Supreme Court, Fifth Department ; General Term,
    October, 1885.
    (Confirming ante, p. 159.)
    Eminent Domain.—Courts ; commissioners of appraisement.— Constitutional Law ; right of appeal. —Compensation.—-Navigation.—Water-courses; Niagara river; TITLE TO BED; NAVIGATION; PRESCRIPTIVE RIGHT TO USE WATER FOR MILL PURPOSES; ACCRETIONS.—Nuisance ; dam in navigable RIVER. —J UDGMENT. —EVIDENCE.
    The commissioners of appraisement duly organized under L. 1883, c. 336, to ascertain the compensation to be made to the owners of " property taken for the State Reservation at Niagara, constitute a court, and are recognized as such by the constitution of the State (art. 1, § 7).
    Section 9 of the act of 1883,—which makes the second report of the commissioners, in case the first report is set aside on appeal and a new appraisal directed, final and conclusive on all parties interested, is not unconstitutional; the denial of the right to review the second report does not violate the prohibition of the State and United States constitutions against depriving a person of his property without due process of law.
    Section 14 of the act of 1883,—which avoids all proceedings taken under it in. case the Legislature fails within two years after its passage to make an appropriation to pay the owners of the lands selected by the commissioners of the State Reservation,—was complied with by the timely appropriation of the amount awarded by the commissioners of appraisement, whose report had then been confirmed by the court. The failure to provide for the possibility of an increase in the amount by new appraisal and award, was not fatal under the rule which requires that, before property is taken by the State for a public use, an adequate remedy must be provided by which the owners can obtain payment iherefor through the aid of the courts, if it becomes necessary to resort to them.
    The report of the commissioner, while it stands as confirmed undisturbed, has the character of a judgment, and is presumed to represent the sum to which the owners are entitled as compensation.
    The State grant of the lands, lying along the easterly side of the Miagara river in the vicinity of the Falls, gave the grantees no title to the bed of the stream, because it is a navigable public river and constitutes the natural boundary between this and another country.*
    The interruption to actual navigation of the Miagara by the Falls does not qualify or distinguish it in that locality as a public river from its general character.
    The grant conferred no right upon the riparian owner, as against the State, to construct and maintain awing dam in the river, and therefore he cannot claim compensation from the State, when it takes his land, for the value of the use'of the dam fon supplying water-power to run the machinery of a mill upon his premises.
    Such a dam at a point where the river is incapable of actual navigation, so that the common right of the public is in no way impaired thereby, is not to be regarded as a nuisance which could not ripen into a right by its continuance and use for the period prescribed by the statute of limitation.
    To establish a prescriptive right to use the water of the river as against the State, it would ,not be sufficient to show merely the uninterrupted continuance of the dam for the period of limitation, but the like continuous diversion of the water must be shown.
    A riparian owner’s right to accretions, as such, in the bed of a river, depends upon actual contiguity; and the separation of his land from such alluvion, by the land of another, however narrow it may be, defeats his right.
    To vest title in a riparian owner- to land reclaimed from the bed of the river opposite his premises, as an accretion, the formation of the land must have been gradual or imperceptible, and produced by the action of the water, not by- a deposit of material excavated in the construction of a canal along the river.*
    
      * In Goodwin v. Thompson (Supm. Ct. Tenn., Oct., 1885), 21 Cent. L. J. 369, it was held that the soil below low-water mark of the rivers of the State, navigable in a legal sense, as well as the use of the stream for purposes of navigation, belongs to the public, and the title is vested in the State for the use of the public; that the title to the soil under the waters of such navigable streams cannot be acquired by individuals under the general land laws of the State, and a grant thus obtained, which undertakes to include the bed of such a navigable stream and to give the grantee the exclusive privilege of taking from the bed of the stream so included, sand, gravel and other deposits found therein, is to this extent void.
    
      The judgment .in an action between riparian owners along the Niagara river to determine as between themselves their respective rights to the use of the water taken from the river for hydraulic proposes, and which fixes such rights, is not conclusive against the State in this proceeding to acquire the land of a party to such action, and is not made so by a special statute directing the court to consider it on appeal “as to its competency, materiality and relevancy as if said evidence had been received by the commissioners of appraisement under objection and exception.”
    The right of a riparian owner to divert the water of the river and use the same, acquired by prescription as against the State, must be limited to the quantity and extent of diversion for forty ours, the period of limitation; and it cannot be enlarged by the creation of additional means for the appropriation of the use of it.
    * To the same effect, see Hensler v. Hartman, ante, p. 176, n.
    
    Appeal by Rowland F. Hill from the appraisal and report of the commissioners, and from the order of the Erie special term, confirming their report.
    The proceeding was taken pursuant to chapter 336 of Laws of 1883, entitled “An act to authorize the selection, location and appropriation of certain lands in the village of Niagara Falls for a State Reservation, and to preserve the scenery of the Falls of Niagara,” as amended by Laws of 1884, ch. 109. Upon the application of “The Commissioners of the State Reservation at Niagara,” the court appointed Luther R. Marsh, Matthew Hale and Pascal P. Pratt as Commissioners of Appraisement, and they proceeded to ascertain the compensation which should be made to the owners of the property so selected and located pursuant to such act. On September 20, 1884, they made their report, whereby was awarded for the entire property $1,433,429.50, of which was awarded to the appellant Hill $81,690, as compensation for his property embraced within it, which was owned by Hill and Murray when the proceeding was instituted; and during its pendency Hill succeeded to the interest of Murray.
    The proceedings before the commissioners are reported ante, p. 159, which see for a fuller statement of the facts. The report was confirmed by the order of the court, at special term, in October, 1884, and by Laws of 1885, chapter 182, an amount equal to that of the awards was appropriated to pay them.
    The premises in question consisted of three and a half lots containing 49-100 of an acre, upon which is a hotel and a pulp-mill with a water-power used to propel machinery, which the appellant claims is largely an element of value of the property sought to be taken. The facts involved in the questions presented upon the review are stated in the opinion of the general term.
    
      William G. Choate and Charles W. Dayton (Brundaget & Chipman, attorneys), for the appellant.
    
      Ansley Wilcox (Allen, Movius & Wilcox, attorneys), for the Commissioners of the State Reservation, respondents.
   Bradley, J.

The ninth section of the act of 1883, provides that within twenty days after confirmation of the report an appeal may be taken to the supreme court from the appraisal and report, which may be heard at general term ; that on the hearing of such appeal the court may direct a new appraisal before the same or new commissioners, and that “ the second report shall be final and conclusive on all the parties interested.”

The counsel for the appellant contend that the provision denying the right of review of the second report is in violation of art. 1, § 6, of the constitution of the State, and of the fourteenth amendment of the constitution of the United States, in that it seeks to deprive him of property without due process of law. This proposition has some support if the commissioners cannot be treated as a judicial tribunal. When organized they constitute a court, and are recognized as such by the constitution of the State for the purposes of ascertaining the compensation to be made (other than by the State), for property taken for public use (Art. 1, § 7). This provision is the same as that for condemning property for purposes of railroads (L. 1850, c. 140, § 18), which has been held valid (Matter of Prospect Park & C. I. R. R. Co., 85 N. Y. 489). And there is no apparent reason for requiring the application of a different rule as against the State.

The fourteenth section of the act of 1883 contains the provision that, in case the Legislature shall fail to make an appropriation, within two years after the passage of the act, to pay the owners for the lands which may be selected and located by the commissioners, all proceedings which may have been taken shall be void.

It is urged that this provision was not complied with, and that the proceedings taken were ineffectual for any purpose. This act was passed April 30, 1883, and on April 30,1885, an act was passed appropriating $1,433,429.50, to pay the awards. It contains no provision which permits the payment in any event of any greater amount. The contention is founded on the fact that the possible increase of the amount of the awards is in no manner provided for ; that no authority is given to pay, and no means furnished to obtain payment of the increase in the event it should be required by the final result of the proceedings taken to condemn the property.

It may be questionable whether the act of 1885 and its effect are properly here for consideration, since this is a review only of the appraisal and award and the order of confirmation, all of which were had and done within the two years and before that act was passed. The act of 1885 has relation to the consequences of the proceeding rather than to the judicial action of the commissioners whose determination is the subject of inquiry on this appeal. If no right in the State to take the property is derived from the action of the commissioners and court, by reason of defective legislation, a question is presented for consideration elsewhere, and may not necessarily arise on this review.

The property cannot be taken without compensation, and until there is a certainty that it will be paid, or may be obtained, the owners cannot be divested of their property. That rule applies no less to the State than to a private corporation ; except that, in view of the fact that the whole property in the State is held subject to the power of taxation for its legitimate purposes, it may not be required to pay before it can acquire title to property for public use by means of the right of eminent domain; yet, before it is taken, an adequate remedy must be provided which will enable those entitled to payment to seek and obtain it through the aid of the courts, if it may become necessary to resort oto them (Bloodgood v. M. & H. R. R. Co., 18 Wend. 9, 18 ; Rexford v. Knight, 11 N. Y. 308, 314).

The question raised by the appellant’s counsel is that the act of 1883, has provided that its continued existence as a law to support the proceedings, and the validity of them, taken under it, should depend upon subsequent legislation which has not been had to the extent required to support them, because the later act does not contain provisions which give certainty that the appropriation there provided for and permitted will cover the amount required to pay the compensation which may eventually be awarded for property ; that it arbitrarily limits the amount to be paid and received to that of the sums awarded, while the possibility exists for its increase by new appraisal and award. And that, therefore, the act of 1885 is not a compliance with the provision of that of 1883, requiring, for the support of the proceeding, an appropriation to pay the owners for the lands sb selected and located.

The apparent amount required to make such payment is provided for by the act in question. The report of the commissioners, while it stands as confirmed undisturbed, has the character of a judgment, and is presumed to represent the sum to which the owners are entitled as compensation. The appropriation was made to provide for such payment, and it does not appear that it may not be sufficient to pay the awards in the event of a new appraisal. We think the proceeding has not fallen for want of legislation.

The other questions presented have relation to the value of the property of the appellant embraced within that so selected and located, with its appurtenances, which involved the consideration by the commissioners, to some extent, of the rights the owners of these premises had, to take and appropriate water from Niagara river for hydraulic purposes; which depended somewhat upon the question whether or not the river was a navigable one, and the title to the bed of the easterly half of it was in the State ; and if so, whether a prescriptive right had been acquired to divert from it water to the premises for the uses to which it was there applied, and to maintain structures in the river for that purpose. The commissioners held that it was a navigable river, and that the riparian owners had no title to any portion of its bed, and no right, as against the State, to maintain such structures in it to divert its waters, unless it was afforded by such continued use as to permit the presumption of a grant. But they allowed compensation based upon such right, without definitely determining that it existed.

It is contended that the grant under which the title to the property in question is held, carried its boundary to the center of the river, and that the river is not a navigable one in the common law meaning of that term.

By the treaty and cession of 1786, between the States of New York and Massachusetts,—which gave to the latter 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),—there was reserved to the State of New York, one mile in width along the easterly side and for the. whole length of the Niagara river. And in June, 1814, it by patent granted to Augustus Porter and, Benjamin Barton, a tract of land (including that in question) described as lots 42 and 43, of the unappro- - printed lands lying along the easterly side of the Niagara river, as those lots had been surveyed and described in the field-book and map of the lands, filed, &c., together with all and singular the rights, hereditaments, and appurtenances to the same, or in any wise appertaining, excepting and reserving all gold and silver mines.

The field-book referred to described the boundary lines as running to, along and by the Niagara river.

It is contended that this grant, by its terms, or by necessary implication conveyed the bed of the river to its center, and that the reservation of gold and silver mines only, has some significance in that direction. We think there is nothing in that patent which had the effect to divest the State of any part of the bed of the stream, if it was a navigable river.

In August, 1820, Benjamin Barton released his interest in the lands to Augustus Porter, who, in December, 1824, conveyed an undivided half to Peter B. Porter. And they, in January, 1840, made between themselves a partition of them by which they described the lands by lots and parcels, and took title in severalty. And by this partition deed reference was made to the water and mill facilities furnished by some of the lots; and, for the purpose of the regulated use of such privileges, thereby declared to be necessary for the profitable occupation and enjoyment of them in common with other proprietors similarly situated, it was by such deed covenanted that each of the parties should thereafter have the right and privilege of taking and drawing for each lot apportioned to him situated on what was called the lower canal, so much water as should be sufficient, by a prudent use thereof, to drive two run or pairs of millstone, upon such water-saving principles as are usually adopted by skillful engineers and builders, subject in common with other proprietors to whom the right of using the water is or may be granted; and that each of the parties defray his just and equal proportion of the expenses of the necessary enlargement, extension, maintenance, preservation, and reparation of the canal, raceways, &c.

Amongst the lots on the lower canal, and included in such partition, were those numbered 16, 18, 20, and half of lot 14, of which Hill and Murray became the owners in 1877. They constitute the premises in question.

For the purpose of supplying this canal with water, a wing dam has been constructed of the length of three hundred and sixty-five feet, extending into and up the Niagara river from the head of the canal, and by which the water is diverted and conducted into it. The dam is supported by the bed of the river.

From this canal, water is taken on to the lots adjacent to it, and applied as power to propel machinery. The appellant has a pulp-mill on his premises so operated. And the value of the property depends largely upon the right to maintain this dam to supply the canal with water. As between individuals, probably no question could arise in respect to the right to make and maintain the dam. But as against the State the inquiry arises whether it has, or the riparian owners have, title to the bed of the river to its center.

By the common law, titles to the beds of navigable rivers were in the sovereign; and grants of land bounded by such rivers passed title to high-water mark only, while grants of land on one side of and bounded by rivers not navigable included one half of the stream, and made its thread the boundary line.

Those in the common law sense of the term deemed navigable, were rivers only in which and where the tide ebbed and flowed. In many of the States, that rule in its strictness has been and is applied, and in others, the large fresh-water rivers, having adequate capacity and used for general purposes of navigation, are deemed navigable, and the States assume to have the proprietary interest in, and j urisdiction over, them; and substantially the same rule is applied to them as that of the common law to those whose waters are subject to tidal influence, with the difference in some instances that the low, instead of the high, water mark is adopted as the boundary line of the riparian owners. This distinction is one of property only, and does not affect the public easement; for by the common law all freshwater rivers of sufficient magnitude and capacity for navigation are public highways, and although the entire proprietary interest of them is in the riparian owners, they have such title subject to the easement of the public, which they cannot lawfully interrupt (Browne v. Scofield, 8 Barb. 239 ; Treat v. Lord, 42 Me. 552 ; S. C.,66 Am. Dec. 298). But the right to the usufruct and enjoyment of the waters for any purposes to which water or its power may be applied, is appurtenant to the ownership of the adjoining land, and may be so appropriated by the riparian owner, subject only to such easement and to the limitation that the, rights of other riparian owners, equally entitled to such use, shall not be infringed.

. The rule is otherwise in respect to navigable rivers. There the property is in the sovereign or State, and the riparian owners as against it for its use have no proprietary interest or right in the waters as appurtenant to the soil owned by them on the river banks.

Whether the common law qualification is applicable to the large rivers in this country, has had some consideration by the courts of this State, and produced diverse views in the opinion of jurists. And the conclusion has been reached that the Hudson beyond tidal influence, and the Mohawk are navigable rivers, and the State has title to, and jurisdiction over them as effectually as those where tide ebbs and flows (Canal Appraisers v. People ex rel. Tibbits, 17 Wend. 571; People v. Canal Appraisers, 33 N. Y. 461). And the discussion furnished by the opinion in the latter case did not distinguish the Mohawk from other fresh water rivers of like magnitude and capacity for purposes of navigation, but seemed' to place the departure from the common law rule upon asserted reasons applicable to that class of rivers in this country which do not apply to those of England, that while those of that country and the portions of them not affected by the tide are comparatively short and of small magnitude, there are fresh-water rivers in this country of great length and size, and having capacity for continuous actual navigation, and which are navigated by large vessels for commercial purposes.

In Commissioners v. Kempshall (26 Wend. 404), which related to the Genesee river, the common law doctrine was re-affirmed, but, assuming that the contrary effect should be given to the decision of the Tibbits case, it was there said, that as the State had granted away its title to the bed of the Grenesee river by the cession to Massachusetts in 1786, and the defendant there held under such grant, and the State had no proprietary right, he took to the center of the river, and such right to the enjoyment of the waters as was appurtenant to his relation of riparian owner. The last proposition is not applicable to the Niagara river, no part of which was covered by such grant, as has been before observed.

And in the later case of Smith v. Rochester (92 N. Y. 463), the views expressed in the opinion delivered, were to the effect that the common law rule applied to the fresh-water rivers in this State without reference to their size, capacity or importance for the purposes of navigation, and, consequently, to all those where the flux and influx of the tide was absent, the riparian owners whose lands are bounded without restriction by such rivers or their banks, take title respectively from either side to the thread of the stream, with all the rights appurtenant. And that the Hudson above tidal influence, and the Mohawk, are distinguished from other fresh-water rivers by reference to the fact that the early and original settlers along those rivers derived their titles from Holland, where the civil law prevailed.

It may be difficult on principle to see how the civil law gained and had supremacy in the valleys of the Hudson and the Mohawk, but it may be that long assumption and recognition as between the State and the oxyners there, in respect to the proprietary rights to those rivers, are entitled to consideration in determining their status. But the opinion proceeds to say that 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 the streams forming the boundary line 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 which 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 reasons national and international.

The line between the United States and Canada is located in the center of Niagara River (Treaty of 1783, 8 U. S. Stats, at L. 55; and that of Ghent in 1814, Id. 221). And such is the boundary of Niagara county (Laws of 1808, ch. 40). So far as our attention has been called to any authority relating to this river, it has been recognized and treatéd as in every sense a public river, as much as if it was an arm of the sea in which the tide flowed, and acknowledged as such (Canal Appraisers v. People ex rel. Tibbits, 17 Wend. 571, 623 ; Kingman v. Sparrow, 12 Barb. 201).

And we think, because it is navigable in fact and constitutes the natural boundary between this and another country, is the reason why the proprietary right from its margin to such boundary line is in the. State, and that the riparian owners have taken by the. grant referred to only to the water’s edge of the. stream. And that the fact, that at the particular place in question the river is not navigable by reason, of the interruption produced by the Palls, does not qualify or distinguish it in that locality as a public river from its general character.

We do not deem it necessary for the purposes of this case to further express any opinion in respect to. the applicability of the common law doctrine referred to, to the large rivers in this State which constantly afford facilities for floating large vessels, except when navigation is interrupted by ice.

It follows that the riparian owners had no lawful right as against the State to construct and maintain the wing dam in question, and therefore no right to claim compensation for the value of its use for supplying water power to operate machinery on the premises unless it was constructed and has been maintained under circumstances, including those of acquiescence on the part of the State, such as to equitably entitle the owners to relief, or unless they have the support of a prescriptive right to maintain it.

In respect to the latter, it will be assumed that the State could grant its right of property in this river and its bed, and a right to that extent might be acquired through the statute of limitation, by such enjoyment for the period of forty years as is required to bar the right of action to terminate such encroachment, occupation and use (Code Pro. § 75 ; Code Civ. Pro. § 362 ; People v. Van Rensselaer, 8 Barb. 189; People v. Arnold, 4 N. Y. 508).

To constitute such bar and right, it is necessary that the use'be enjoyed under a claim of right, or adversely, and that it be notorious, continuous and uninterrupted for the requisite time (2 Washb. Real Prop. [4th ed.] 322, 326 ; Colvin v. Burnet, 17 Wend. 564; People v. Arnold, 4 N. Y. 508 ; Miller v. Garlock, 8 Barb. 153).

It appears that a short pier, forty or fifty feet in length, was constructed there as early as 1812, and that it was extended up the river some distance in 1820 and 1821.

The evidence is in conflict in respect to the distance and length then as compared with the present dam. There is some evidence on the part of the appellant that it was then extended nearly to its present termination, while there is evidence to the effect that it was one hundred and thirty-five feet less in length than the dam is now up to 1849, when it was extended one hundred feet; again in 1850 and 1851 thirty feet; in 1859-60, and again, in about 1880, a short distance further.

And a map of 1836 was produced, which located the terminus of the dam one hundred and thirty-five feet short of where it is at present.

This question of fact was with the commissioners, and justified the conclusion that the wing dam had not for forty years had the length it now has by at least one hundred and thirty-five feet. The canal as it now is was partially made in 1813, was extended from time to time from 1819 to 1836, when it was taken as far down as the premises in question. And the first building erected on them was a saw-mill in 1841, to operate which water was taken from this canal.

This mill was destroyed by fire about the year 1848, and no structure was placed on the premises requiring water-power until 1865, when a stone foundry building was erected there and about ten -horse power of water from the canal was applied to run it; and in 1876-7 that structure was converted into the present pulp-mill, which contains much machinery and requires a much larger amount of water-power supplied by the canal. But from 1833 there were mills on some of the lots above these premises, operated by water taken from the canal.

The use and enjoyment requisite to support the prescriptive right claimed relates as well to the use or diversion of the water as to the continuance of the dam (Stiles v. Hooker, 7 Cow. 266). The right to the usufruct of the water (except for purposes of navigation) is proprietary, and that of the State is paramount (Gould v. Hudson River R. R. Co., 6 N. Y. 522 ; Crill v. City of Rome, 47 How. Pr. 398, and cases there cited). And although the riparian owner as such may use water of the river, and has rights in that respect which cannot be impaired by individuals, such right is subordinate t.o that of the State, and as against the latter he cannot appropriate it to his use (People v. Tibbets, 19 N. Y. 523).

While the right to maintain the dam upon the bed depends upon the requisite uninterrupted continuance of it at the place where located, the right to use the water of the river is dependent on the like continuous diversion of it.

It does not very clearly appear how much water had been taken into the inlet and canal for the period of forty years before the proceeding was instituted. The evidence in respect to that fact is found in the character of the dam and its effects in the diversion of water from the river into the canal. If it be assumed that it was within that time one hundred and thirty-five feet less in length than it now is, the water then taken by it was.considerably less than at present. There is evidence tending to prove that the reduction of its length one hundred and twenty feet would reduce the quantity of water diverted by it thirty per cent. The commissioners were permitted to find that there was no prescriptive right as against the State to take from the river and use the quantity of wafer which is taken by the dam as now extended. There has been a dam of upwards of two hundred feet in length which continuously for upwards of forty years gave some supply of water to the canal, and assuming that the right was acquired to thus maintain the dam, it necessarily follows that as a consequence the diversion of the water into the canal which it would produce would also result as a right.

The evidence does not very definitely permit the measure of the quantity which would be supplied to the canal by the pier or dam so curtailed.

The commission, without expressing any definite determination of the question of prescriptive right, have by their opinion said that they practically decided this question in favor of the claimants, and have allowed what in their judgment is the full value of the water-power which has been used for the prescriptive period.” This renders it unnecessary for us to give further consideration to that question, unless they have applied an erroneous principle as the basis of estimate on the assumption that such prescriptive right existed, which question may arise as we proceed.

The contention of the counsel for the respondents, that this dam was a public nuisance, and therefore its continuance and use could not ripen into a right, we think, is not supported.

It is conceded that the river is incapable of actual navigation at this place, and the diversion of the water there does not affect the river for that purpose elsewhere. A public nuisance is an injury to the jus publicum, which in this river is that of navigation only.

The common right of the public is in no manner interrupted or liable to be impaired by this structure where it is located. Beyond the fact of navigation, the rights in the river are proprietary, only the invasion of which is to be dealt wiih as such. The common right of navigation in navigable rivers of the State is in the people, and the equality of their right to use them for that purpose cannot be abridged except by themselves through the power they have delegated to the legislature (People v. N. Y. & S. I. F. Co., 68 N. Y. 71, 78).

A question is presented in respect to a piece of land reclaimed from or made in the bed of the river opposite these premises and adjacent to the bank. On the hearing there was conflict of claim to that made land, founded in the contention of those succeeding to the rights of the parties who took under the original grant, that the premises conveyed to Hill and Murray did not extend to" the bank of the river, but were bounded on that side by an intervening street, known as Cascade street, running along on the bank between them and the stream, and that the center of the street was the boundary line of the appellant’s land.

If that contention is supported in fact, he is not entitled to it, because the right to accretions as such in the bed of a river depends upon actual contiguity. And any separation of his land from such alluvion by that of another, however narrow it may be, defeats his right (People ex rel. Banks v. Colgate, 67 N. Y. 512; Saulet v. Shepherd, 4 Wall. 502; The Schools v. Risley, 10 Id. 91; Barney v. Keokuk, 94 U. S. 324, 334 ; 3 Washb. Real Prop. 55).

But it seems unnecessary to determine the question of boundary, as the formátion was not such as to govern title to it by that of the contiguous bank. To vest such a title it was necessary that the formation must have been gradual or imperceptible in the legal sense of the term (3 Washb. Real Prop. 59; Halsey v. McCormick, 18 N. Y. 147 ; Cook v. McClure, 58 N. Y. 437 ; County of St. Clair v. Lovingston, 23 Wall. 46).

This was not done in that manner, nor was the formation produced naturally or artificially wholly by the action of water, but by the deposit there of material excavated in the construction of the canal. This did not divest the State of its ownership in the portion of the bed of the river so reclaimed (Whetmore v. Brooklyn Gas Light Co., 42 N. Y. 384).

The learned counsel for the appellant contend that his property was greatly undervalued by the commissioners and that the compensation was very inadequate. And while this contention relates to the premises exclusive of his alleged water-rights applicable to them, the latter are the subject of the greater discrepancy between the amount claimed and allowed. By the arrangement, as has been seen, which distributed the rights to the respective owners of the lots on the canal, as between themselves, each lot was entitled to sufficient water from it to propel two runs of stone. Hill and Murray had three and a half lots, which entitled them to sufficient for seven runs of stone.

In 1840, when such rights were defined, the waterwheels in use were those known as the tub, breast, overshot and undershot wheels, and as then ordinarily used, it required from ten to twenty-five horse-power to drive one run of mill-stones. And in the use of those waterwheels an efficiency of only from sixteen to forty per cent, of power was realized, although the overshot wheel, when well placed, might give sixty per cent, effective power; but this required comparatively expensive preparation which was not usually accomplished.

Since then, improvements have been made,' and brought into use water-wheels which give from seventy-five to upwards of eighty per cent, efficiency, and especially is that afforded by what is known as the turbine wheel. So that, with the same quantity and head, the efficient power is greatly increased for the propulsion of machinery upon these premises. And since 1840, the head has by excavation been increased from eight and a half feet to upwards of sixteen feet practical head, thus doubling the power which may be appropriated to such uses.

Upon this method of calculation, a largely increased efficiency is found, and an estimated rental value per horse-power is made on that basis, and when capitalized produces a sum very much in excess of that awarded to the appellant; but on this subject of value there is a wide difference and conflict between the witnesses of the respective parties.

The appellant has been permitted by an act of the legislature passed April 7, 1885, to present to the court on this appeal as evidence, a judgment-roll in an action between the persons owning lots along the canal to determine as between themselves their respective rights to the use of the water taken into it for hydraulic purposes. This judgment was rendered after the report of the commissioners was made and confirmed, and by it the rights of the parties to the record, as between themselves, are apparently established in respect to the use of such water upon the basis of the original distribution of rights before mentioned, and declares that when that was done in 1840 with a head of eight and a half feet, twenty horsepower was required to drive one run of stone with the water-wheels (then in use) of thirty per cent, duty, equal to a flowage of four thousand one hundred and fifty-two cubic feet of water per minute ; that the aggregate quantity of water which all the owners may use from the canal is one hundred and seven thousand nine hundred and fifty-two cubic feet per minute, of which the owners of the premises in question are entitled to twenty-nine thousand and sixty-four cubic feet per minute.

It is contended that this record is conclusive evidence in this proceeding, of the rights of the appellant in respect to the water, and establishes the fact that with increased head and improved wheels he has for his lots the right to appropriate upwards of six hundred effective horse-power.

The act referred to does not give the record that effect, but directs that it shall be considered by the court on the appeal “ as to its competency, materiality and relevancy, as if said evidence had been received by the commissioners of appraisement under objection and exception.” So that the legislature has not adopted this adjudication as effectual to establish against. the State, any rights of the parties to the action by the judgment declared.

The record stands upon its own merits, and has in this proceeding such support only as it alone can furnish as evidence.

The rule is general, that a judgment is not evidence against one who is neither a party to the record nor a privy of the parties to it, or some of them (1 Greenl. J$v. §§ 522, 523).

By this judgment is declared the right of the parties to take to their premises and use a certain quantity of the water of the Niagara river. If that be assumed, then the matter of distribution by the judgment which concluded the parties might be effectual to establish their rights, as between them respectively, and a third party interfering with their rights. But the difficulty is, that the State, originally having the proprietary interest in the use of the water of the river, does not concede, but contests, their claim of righ t to the use of the water, and not having been a party to that action, and no opportunity to be heard there, the judgment in that respect has no force as against it. And when we come to inquire about that on the assumption of a prescriptive right of those parties, the question arises, how much water did such right afford them?

It appears that the commissioners were permitted to conclude, and it may be assumed that they did hold, that those parties had no such right to the use of the water which was diverted by the dam, as it was at the time of the hearing, and that a considerable portion of it had. been added within forty years. And it appears by the evidence, that by the lengthened dam the quantity taken into the inlet was only seventy-two thousand cubic feet per minute, and only thirty-one thousand cubic feet per minute of that entered the canal; that thirty-three thousand feet per minute went over the spillway into the river above the canal, and the residue escaped by leakage and waste.

There is, therefore, no support for the contention that those parties have acquired, as against the State, the right to take from the river into the canal one hundred and seven thousand cubic feet of water per minute. And when that part of the judgment fails as a basis of calculation, it has no support as evidence in this proceeding, of the quantum to which they are respectively entitled. It appears that the velocity of the water in the river outside and at the-head of the inlet is seventeen to twenty feet per second, and in the inlet, seven and eight one hundredths feet per second, while in the canal it is only one and a half feet per second. There is evidence tending to prove that the velocity of the water in the inlet and canal may. be accelerated by increase of fall and capacity. And it is claimed that there is some opinion to the effect that by taking one hundred and twenty feet from the dam, the deficiency may be made up by deepening the channel of the inlet and directing chutes into it.

But the supply of the quantity of water, assumed as the basis of the estimates contended for, will be much more than has ever been taken by means of the dam as it is.

It is contended in support of the claim that, having acquired the right to that portion of the bed of the river embraced within the wing dam, the parties have the right to draw over that section of the bed any amount of the water of the river they can cause to flow there, and that it is immaterial how much they have hitherto drawn through it or used. And that, therefore, the commissioners erroneously based their right upon the quantity used.

But, as the paramount usufructuary right to the water is in the people of the State, the riparian owners can have no greater right by prescription in respect to quantity than that afforded to them by the condition of the means of the diversion as maintained continuously for the prescriptive period. A right so afforded is defined and described in extent by the use and enjoyment which gave it. The right here under consideration is not one of physical occupation but of diversion and use of water as appurtenant to property in connection with use of a certain portion of the bed of the stream for that purpose. The right depends upon use, and is limited by it, and, as against the original proprietor, it cannot be extended beyond that which produced the right.

The people of the State by their legislative power are seeking to appropriate to a public use—to the use of themselves—that which is theirs, and by the right of eminent domain, property of certain individuals.

The right to the use of the running water of the river, except so far as it has become appurtenant to the property of the claimants by an acquired prescriptive right of diversion and use, remains in the people of the State, with the right to treat it as exclusively for public purposes. The right of diversion so acquired by those parties, as against the State, must be limited to the quantity and extent of diversion for forty years.

It cannot be enlarged by the creation of additional means for appropriation of the use of it. And it may be assumed, that in that view the commissioners applied the rule of measure to the rights of the claimants in that respect. So that, assuming the existence of the right of diversion to the same extent as the structures maintained for that length of time may produce for the use of the land-owners, it is quite evi- • dent that the appellant is not entitled to the quantity of water, or of power from it, for his premises, which is claimed in his behalf. And we cannot say, in view of all the evidence, that his rights in that respect have been under-estimated by the commissioners. It does not in any manner appear that the commissioners applied erroneous principles to their method of estimating value, or that they failed to recognize all the existing rights of the appellant in making the award of compensation to him. He is entitled to the full market value of his property for any and the most advantageous purposes for which it is adapted or may be used (Boom Co. v. Patterson, 98 U. S. 403; Trustees of College Point v. Dennett, 5 Supm. Ct. [T. & C.] 217; Dickenson v. Fitchburg, 13 Gray, 546).

There is apparent conflict of evidence in respect to the value of the property, by some of which it is estimated below the amount of the award, and by some, very much in excess of it. It was such as to present a question of fact for the commissioners to determine. And they were required by the statute to, and did, take a personal view of the premises.

We have carefully examined the evidence on that subject, and think their conclusion was justified and is supported by it. • And we cannot say that the commissioners failed to award a just and proper compensation.

We fail to discover any substantial error in the admission or exclusion of evidence on the hearing.

The appraisal and report and the order of confirmation should be affirmed.

Smith, P. J., and Barker, J., concurred. 
      
      
        L. 1835, c. 182.
     
      
       That “reserving” from operation of grant, same effect as “ excepting,” see Sisson v. Cummings, 35 Hun, 22.
     
      
       Compare Sisson v. Cummings, 35 Hun, 22.
     
      
       A contrary opinion is intimated by the supreme court of Tennessee (Oct. 1885), in reference to the navigable rivers of that State, in Goodwin v. Thompson, 31 Cent. L. J. 369.
     