
    The People, ex rel. Jennings, against Seymour, Woods and Selden. The Same, ex rel. Egleston, against The Same.
    ALBANY,
    Feb. 1827.
    To the writs of alternative mandamas granted in these causes on motions reported, ante. 518, 520 to 536, the defendants now made separate returns; Seymour, that after inquiry, the appraisers came to the conclusion that the state had not parted with the land upon which the Chitte-ningo creek passes at the places claimed, &c. as set forth in his affidavit, and for the reasons stated by that affidavit, as mentioned in the report above referred to ; Woods, that he had ever been of opinion that the claim of the rela-tors to damages was legal and equitable ; and that he was ready and willing to appraise ; and Selden, that he had a claim for damages depending in some measure on the same principle with the claims in question in these causes; and had therefore declined to appraise ; not deeming it prudent, under the circumstances, to act, until the other appraisers should agree, or the question should be otherwise settled. That the creek at the place in question is an inconsiderable fresh water stream far above tide water, and in no sense of the term navigable. That since the decision of this court, he was ready to appraise.
    
      ⅞ owners of lan<* 3¾°⅛-water where ¡jpt ⅛* da°nd fhJ%°cTof ⅞ streamusqucfi-
    
    ““"⅛1118 tion; the return tive mandamus Insufh'
    
      On filing these returns,
    
      S. L. Edwards, for Jennings, and
    
      N. P. Randall, for Egleston,
    
    moved for writs of peremptory mandamus.
   Curia.

These causes were before us at the terms of August and October last. We granted writs of peremptory mandamus at August term; but at October term changed the rule in each cause into one for an alternative mandamus, upon a suggestion that the appraisers wished to make special returns, and bring writs of error, should the decision here be against them. The facts which we have already twice passed upon, are not denied or questioned by the returns. We accordingly adjudge them insufficient ; and grant writs of peremptory mandamus.

Rule accordingly .  