
    Champlain Stone and Sand Company, Appellant, v. The State of New York, Respondent, Impleaded with Charles S. Fenton.
    Third Department,
    January 4, 1911.
    Waters and watercourses — construction of "barge canal on line of Wood creek when lessee of abutting lands not entitled to compensation — right of State to improve public streams — destruction of bridge by-widening public waterway — good faith of person constructing bridge — State has title to bed of Wood creek.
    Wood creek is a public highway, being excepted from the lands conveyed by the “ Artillery Patent” and reserved as a common highway for the benefit of the People.
    Assuming that the State has only an easement for a public highway in Wood creek, where the lands beneath the waters of said creek are used for canal purposes on the construction of the barge canal, the lessee thereof is-not entitled to an award for damages, as they, if any, belong to the lessor.
    The State has a right to improve, to deepen or to widen a stream used as a public highway; and hence a lessee from the riparian owner who has constructed a bridge over such stream is not entitled to damages when the stream becomes part of the barge canal by reason of the fact that the widening of the public ' waterway will make the construction of a new bridge very expensive.
    No adjoining owner has a vested right in- a public stream as he finds it. His rights are always subject to the right of the State to improve the stream for navigation.
    The State in constructing the barge canal along the general line of-Wood- creek cannot be deemed to be constructing a new artificial water highway because the canal does not follow the winding of the .creek.
    Nor can it be said that the construction of the barge canal on the general line of . Wood creek is not an improvement of a navigable stream because the adjoining landowners lack the ordinary riparian rights owing to the fact that the use of the canal is under special regulation.
    Assuming that the State has only a right of way in the waters of Wood creek, the lessee from an abutting owner may bridge the stream provided he does not impair its usefulness as a public highway. But if such bridge was built in bad faith and for the purpose of enlarging the claim against the State the owner 'is' not entitled to compensation when the stream is widened.
    The mere fact that the lessee of lands abutting on a public stream, knowing that it is the contemplated line of a new canal, bridges the stream is not alone sufficient to show bad faith so as to defeat a claim for damages.
    As Wood creek is expressly excepted from the lands granted under the “Artillery Patent,” the State has title to the bed thereof, not a mere, right of way for. the benefit of the People.
    In construing a grant from a sovereign to a subject the terms of the instrument are taken most strongly against the grantee.
    
      Where the State owns the bed of 'a navigable stream no riparian proprietor may-bridge the stream without legislative permission.
    The construction of such bridge is in the nature of a trespass, and the State need not compensate the owner where it is destroyed by the widening of the stream.
    Hence, a lessee of lands who has built a bridge across Wood creek without legislative permission is not entitled to compensation from the State when the waterway is widened by the construction of the barge canal.
    Kellogg, J., dissented, in part, with opinion.
    Appeal by the claimant, the Champlain Stone and Sand Company, from a judgment, of the "Court of Claims, entered in the office of the clerk of said court on the lltli day of July, 1910, awarding the claimant the sum of $1,170.83.
    Prior to March, 1906, one Charles S. Fenton was the owner of a quarry situated near Fort Ann, Washington county, and of flat lands adjoining said quarry, and- extending therefrom to the lands of the Delaware and Hudson Bailroad Company. In that month he made a lease of the said quarry to James E. Flood and James D. Sherrill for the term of ten years. By the terms of that lease the lessees agreed to pay the lessor $100 a year in advance, on April fourteenth in each year, during the term of the lease, for the right of way for railroad tracks and land occupied by crushers, bins, etc., and lands used for quarry purposes, and in addition four cents per cubic yard for all stones taken from said quarry and shipped away. On March twenty-fourth, ten days after- the making of said lease, the lessees assigned their interests therein to the claimant. These lessees took in payment therefor $30,000 in the stock of the claimant company, and were at the time of the trial officers of said company and largely interested therein. On August 27, 1906, Fenton extended the term of said lease from ten to twenty years. Tliere^after and in 1906 the claimant expended large amounts of money upon stone crushers and in "building a gravity track from the stone quarry across the flat land of the said Fenton to the Delaware and Hudson railroad. Between the quarry property and this railroad runs Wood creek, which was crossed by this railroad by means of a bridge. This track was so built that a carload of stone started at the quarry would run by its own weight to the land of the railroad company, from which it was taken by the engines of the railroad.
    
      By chapter 147. of the Laws of 1903 the State was authorized to appropriate lands for the Champlain branch of the barge canal. In 1904 a course was surveyed through the flat lands of the said Fen-ton between the quarry and the railroad and along the general line of Wood creek. Wooden stakes were put into the ground upon the line of this survey, upon which were marked the letters “ O. L.,” standing for “ Center Line.”' The old Champlain canal was upon the west side of the railroad, whereas the quarry was upon the east side of.the railroad. Upon December 27, 1906, a map of the lands appropriated was filed in the office of the Superintendent of Public Works, which indicated the lands appropriated to have been the same lands marked by stakes in the survey of 1904.
    After the filing of the map making the appropriation of these lands for the canal the claimant duly filed this claim for damages caused by the said appropriation, and after a trial before the Court of Claims was allowed the sum of $1,000 as its damage. From the judgment entered upon this decision of the Court of Claims this appeal has been taken.
    
      James McPhillips and Nash Rockwood [L. B. McKelvey of counsel], for the appellant. . .
    
      Edward R. O'Malley, Attorney-General[Wilber W. Chambers, Deputy, of counsel], for the respondent.
   Smith, P. J.:

My conclusions in this case, briefly stated, are as follows:

First. The appropriation for which compensation is asked was not of the stone quarry but of the right of way to the Delaware and Hudson railroad, involving the destruction of certain structures thereupon. The right of way from the quarry to the Delaware and Hudson railroad crosses Wood creek, about fifteen feet in width, by a bridge, which in no way has interfered with the navigation of Wood creek; in fact navigation upon Wood creek has been long abandoned. The gravity road upon this right of way is deemed of great value, without which the stone could not be marketed at any substantial profit. The barge canal is to be seventy-five feet in width. Even if permitted by the State to bridge the canal the cost would be prohibitive. So that if the State is liable for this injury to’ claimant the damage is substantial.

But Wood creek is a public highway. By the “ Artillery Patent,” through which plaintiff claims, these lands were conveyed, “ excepting the said Wood Creek, which is reserved as a common highway for- the benefit of the public.”

Assume first for the argument that the State has only an easement for a public highway in Wood creek.

There can be no claim for land taken, as that claim belongs to the owner or lessor. The major item of damage claimed is for making impracticable this gravity road by widening of the public waterway, so. that it cannot be economically bridged. For this I am clear the claimant has no remedy. That the State has the right to improve its highways and deepen or widen its public streams is within recognized authority. In Lewis on Eminent Domain (§§ 69, 71) it is held that the rights of riparian proprietors upon navigable streams were subject to the paramount right of the public to use and improve the stream as such highway, and subject also to the right of the public to improve the stream for 'navigation. In Mills on Eminent Domain (2d ed. § 80) it is held that navigable rivers may be altered, deepened and their channels changed, and damages resulting from such an improvement are not properly the subject of compensation. The public have a right to make use of the river as a natural highway, and if the riparian owner is injured by such use he is without remedy. In Nichols on Eminent Domain (§ 166) it is held-that the public right of navigation is paramount upon a private navigable stream, and is always subject to the servitude of navigation by the public and to the right of the government to construct works therein in aid of navigation. If this stream had at all times been so shallow that the claimant’s teams could have forded it with loads the State clearly could have improved and deepened it without compensating the claimant for the extra expense necessitated for bridging or ferrying. So, also, the State may improve and widen the stream without compensation for the extra expense caused the claimant in crossing. . No adjoining owner has a vested right in a public stream as he finds it. His rights are always subject to the right of the State to improve the stream for navigation.

It is insisted by the claimant, however, that this is not an improvement of Wood creek, but-a construction, of a new artificial water highway, the control of which is entirely reserved to the State. That this barge canal is a public highway is unquestioned. In its construction through the territory in question it follows the general line of Wood creek, which has for many years been a public highway. It cannot matter that in order to straighten this highway the bed of the canal does not always follow the bed of Wood creek. If it had followed the exact windings of Wood creek,, there could then have been no question that it was an adoption and improvement of a highway already existing. , Its right to the construction and improvement of a water highway along the general line of the creek, however, is not in any way impaired by such deviations' as are necessary to straighten and improve the highway.

Again, claimant insists that this is not the improvement of a navigable stream, because it is an artificial waterway under control of the State, in which the adjoining landowners have not the.rights they possess in a navigable stream. But no damage is claimed for the depriving of claimant of any rights to navigation. The barge canal, is a public waterway. The fact that the use' thereof is under special regulation does not after the nature of the improvement or make it any the less such a public improvement as is within the authority of the State to make.'

As to the claimed injui-y by making impracticable the gravity road, the good or bad faitldof'the claimant is probably not material. This gravity road is a valuable adjunct to the property itself, and it cannot matter to the State whether,payment therefor, if liable, be made to the lessor or lessee.

Second. Again, upon the assumption that the State only has a right of way in Wood creek, the claimant had the clear right to construct its right of way and bridge it, provided it did not. impair its, usefulness as a public highway. (Chenango Bridge Co. v. Page, 83 N. Y. 185.) Whether or not- the bridge has yet been taken down the plan of the State involves its destruction and the destruction of part of the roadbed, for which the claimant is entitled to damages if the structures were placed thereon in good faith. If, however, the structures were placed upon the premises in bad faith for the purpose of enlarging its own claims and enhancing the State’s damages, claimant merits no compensation. But there is no finding of bad faith. The lessee undoubtedly knew where was the contemplated line of the new canal, but that alone is not sufficient to defeat their claims for damages. (Forster v. Scott, 136 N. Y. 577; Matter of Mayor, 24 App. Div. 7,10.) Bad faith mast be found as a fact.

Upon the assumption, therefore, that the State has only a right of way in Wood creek the judgment would have to be reversed and a new trial ordered that the court may assess the claimant’s damage for the destruction of the structures constituting the bridge and its approaches.

Third. In this discussion so far I have assumed for the argument that the State only has an easement in Woód creek for the use of the public. If the State owns the bed of the stream a different question is presented.- In that case no adjoining proprietor has the right to bridge the stream without legislative permission. (Fort Plain Bridge Co. v. Smith, 30 N. Y. 44.) No such permission has ever been given either the claimant.or its lessor. The bridging of the creek without such permission was a trespass, and the State is not liable to compensate the claimant either for the bridge destroyed or for the destruction of the roadway constituting the approaches to the bridge. It may be where piers and docks are built by adjoining proprietors to facilitate access to a navigable stream that their destruction even for the improvement of the stream entitles the owners to compensation. But these structures were not built to facilitate access to 'the stream. They were built to cross the stream without the required permission, and for their destruction in the making of this public improvement the claimant has no equitable claim for compensation.

Fourth. That the State does' own the bed of the stream seems to me the necessary construction of the “ Artillery Patent.” From the lands granted by that patent Wood creek has been explicitly excepted. It cannot matter for what purpose the exception is made. It is here agreed that the State now owns whatever did not pass by the “ Artillery Patent.” In Lewis Blue Point Oyster C. Co. v. Briggs (198 N. Y. 287) it is held: “In patents from a sovereign to subject the rule of construction which controls deeds between individuals is reversed and the terms are taken most strongly against the grantee, because' the public interest is involved.” Under this rule of construction it can hardly be doubted that under this patent the title to the bed of Wood creek remains in the State.

The judgment should, therefore, be affirmed, with costs.

All concurred; Kellogg, J., in memorandum.

Kellogg, J. (concurring in result):

At the time of the original patent, 1764, and for many years before, Wood creek was used as a passageway for canoes and like craft from Lake Champlain to the Hudson river. This included a . carry from near Fort Ann to Fort Edward, about eleven miles. Within the knowledge of men now living, the creek has not been used for any such purpose, and is an ordinary creek from seven to fifteen feet wide, from six inches to' two or three feet deep, the water of which runs within banks two or three feet in height, and it has not been used as a public highway or for boating.

The patent, in terms, includes and conveys Wood creek, and there would be no doubt that the title was in the grantee except for the reservation, which • provides “ excepting the said Wood Creek, which is reserved as a common highway for the benefit of the public,” and later in the patent it is recited that it grants unto the patentee the premises before described, and every part and parcel thereof, except, it reserved out of said grant to the King, his heirs and successors, the mines and minerals, “And also except Wood Creek for the uses above mentioned.” I think the latter clause makes emphatic the extent of the reservation, and shows that the clear intention of the parties was that the use of Wood creek was reserved for'the purposes.mentioned, and that the title to the bed of the creek was not reserved, but it passed to the patentee subject to the right of the public to use the creek as a common highway. And this right to use the creek must be interpreted with reference to the use theretofore and then existing,, and cannot justify the filling up and annihilation of Wood creek, the turning of the waters thereof into a canal which is supplied with water from other sources, and is seventy-five feet in width, twelve feet in depth and intended for the accommodation of boats and barges propelled by steam. This latter is a use which never was intended, and the volume of water flowing through the new canal is so out of proportion to that of the little stream winding through the land that it cannot be justified by reason of the burden cast upon the land by the reservation, but is appropriating the land for another and distinct use. The creek itself was very crooked; the canal is straight; and at the place in question the original creek was made a spoil bank and filled with excavations from the canal, and is about seventy-five feet distant from the canal itself. The building of the canal cannot be fairly considered an improvement of the original waterway within the terms of the reservation, but is a separate, distinct appropriation of land for canal purposes. I think that under the terms of the patent the bed of Wood creek became a part of the grant and passed to the patentee, subject to the burden of the public use in substantially the manner that it had been theretofore and was then used. We need not say that the substitution of steam and motor boats in place of the canoe would interfere with the rights of the public in using the creek as a common highway provided it could properly be excavated within about the fair limits of the creek as it formerly was. I think, therefore, the claimant had the right to build the bridge or trestle across Wood creek.

The State very properly did not assume to exercise the rights which it is there exercising on the theory that it was improving Wood creek, but proceeded upon the theory of a separate condemnation of the land for canal purposes, which course "was the only one available to it, and its acts can be justified on ho other basis.

The relator, therefore, by the condemnation is substantially deprived of the use of the bridge and trestle, and is entitled to such reasonable damage as it has fairly sustained thereby.

After the State had taken the steps preliminary to a condemnation of the property for the barge canal, and had marked out the line of the canal preparatory to the condemnation, which action was authorized by the statute enacted shortly before that time, the respondent takes a lease of an unused quarry and, in advance of the actual condemnation, builds the bridge and trestle and begins to work the quarry. The findings show facts fairly charging it with knowledge that the barge canal would run between the quarry that it was leasing and the railroad track. Notwithstanding -this knowledge it took the lease and built the trestle. It has suffered no loss that was not directly in view when it took the lease and constructed the trestle, and its lease and improvements were entered •upon subject to the work which it knew was 'imminent. An injury does not come tO the willing, and the relator is losing nothing by the barge canal, the loss of which was not fully known and discounted in advance, and it has voluntarily assumed the position in which it finds itself. The Court of Claims has awarded it $1,000 damages for an interference with its rights. Its right of way on either side of Wood creek has been interfered with and I think the award ample. I, therefore, concur in the result.

Judgment unanimously affirmed, with costs.  