
    The City of Geneva, Respondent, v. Robert W. Henson and Others, Appellants.
    Fourth Department,
    July 12, 1910.
    Eminent domain — trial of question of title before referee — stipulation— water and watercourses — the State has title to lands beneath Seneca lake — grant to the State of Massachusetts made in 1786 construed — acts of State showing title to lands beneath waters — estoppel of grantees — conveyance of lands beneath water to municipality for park purposes.
    Although section 3367 of the Code of Civil Procedure does not authorize a question of title to be tried before a referee appointed in condemnation proceedings, the issue may be so tried on stipulation of the parties.
    ■ When the State of New York by the treaty of Hartford made in 1786 conveyed to the State of Massachusetts lands west of a line running northerly through Seneca lake but reserved to itself its right of sovereignty over the lands conveyed, it did not convey the fee of the lands under the waters of said lake which is a navigable body of water so that title is in the sovereign.
    By common law the State owns the bed of all waters within its borders which are actually navigable, unless expressly conveyed.
    Moreover, as the State of New York has without objection for nearly a century assumed absolute dominion and ownership over the waters of Seneca lake and the lands beneath the same, as evidenced by various acts of legislation and by conveyances of riparian rights, the title of the State to the waters beneath said lake is superior to one claiming title through the grant to the State of Massachusetts made in 1786.
    The acceptance of riparian privileges in said waters from the State shows an assent to the State’s title.
    A riparian owner as successor to the title conveyed to the State of Massachusetts, and holding under a deed bounding his lands by the shore line of Seneca lake, does not acquire title by adverse possession of lands beneath the water by reason of the fact that in 1863 he erected a small crib beyond the dock line if it constituted no interference with the use of the lake for navigation between, the crib and the shore line.
    
      Where the State has extended its towpath into Seneca lake so as to render a por- ' tion between the towpath and the shore useless for navigation, and that portion threatens to become a public nuisance owing to the accumulation of debris,
    etc., the Legislature has power to authorize a conveyance of the land to the ■ city of Geneva to be filled in and used as a public park.
    Appeal by the defendants, Robert W. Henson and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 25th day of April, 1910, upon the report of a referee.
    
      Philip N. Nicholas, for the appellants.
    
      Arthur J. Hammond, for the respondent.
   Spring, J.:

The Cayuga and Seneca canal connects the two lakes of the same name, with one terminus at the northwestern shore of said Seneca lake.

By chapter 662 of the Laws of 1900 the Superintendent of Public Works was authorized to extend the towpath of said canal from its terminus in the city of Geneva “southerly” for a distance of “about twelve hundred feet to the opening of the Long Pier ” in the harbor adjacent .to said city. This .improvement was made, extending through a portion of the lake, so that a considerable part of the water, was left on the westerly side of the towpath. The lakq- is about thirty-five miles in length, with a surface area of moré than sixty-one square miles, and is the second largest lake wholly within the State. It has been a navigable body of water and used as such for a great many years, and for more than forty years a line of steamboats, with a carrying capacity of from 500 to 1,500 -passengers, besides freight, has been running between Geneva and Watkins at the southerly end of the lake.

When the towpath was extended, and which was a' substantial bulkhead structure, that part of the water on its westerly side was rendered useless for navigable purposes. It was filled in to a considerable extent with earth and debris, the adjacent owners and the officials of; the city and others • contributing to make it a general depositary for refuse matter, and with the stagnant water the place became little better than a cesspool and was believed to be deleterious to public health.

By chapter 665 of the Laws of 190.5 the State of Hew York granted to the city of Geneva all its title and interest in these lands, which had been formerly a part of and under the lake, for the purpose of enabling, the city to till it in and make it a public park. The city also, in case it became necessary, was authorized to acquire title by condemnation of' all the title, rights and easements “ of any person or persons in and to said lands.” This proceeding was commenced in jmrsuance of that act under the Condemnation Law (Code Civ. Proc. chap. 23, tit. 1) in order that the city might acquire the title to all the lands within this grant and to extinguish all claims and interests thereto. The defendant Robert Henson claimed to be an owner of a lot reaching to the towpath and served an answer setting up his title. The case was tried before a referee, who rendered a report in favor of the defendant Henson to the full extent of the title and interest claimed by him. Upon appeal to this court the judgment entered upon said report was affirmed: (121 App. Div. 893.) The city appealed to the Court of Appeals, where the judgment was reversed. (195 N. Y. 447.) The Court of Appeals held that it was not contemplated by section 33G7 of the Code of Civil Procedure that in a proceeding of this kind the question of title should be tried before a referee. However, as the parties had stipulated that such question should be so tried, and as the court had jurisdiction of the proceeding, the reversal was not based upon the fact that the issues had been determined by a referee, and upon the present appeal the parties are bound by their stipulation to refer.

The findings of fact made by the referee were all in favor of the defendant; so that the court was not able to review those supported by any evidence. It appeared, however, that for more than sixty years prior to the commencement of the action many of the deeds upon which the defendant’s title depended extended to the lake and along its southerly or westerly shore." The court held that this description only carried the title of the defendant and his predecessors in interest to the shore of the lake and that no title was obtained by him to the bed of the lake. The findings showed that a part of the claim of the defendant included land under the waters comprising the lake, and a reversal was had for that reason as one of the grounds.

The court in summing up its discussion of this branch of the case used this language at page 464: “ The entire clause which we are considering taken in connection with the conveyance of the uplands by definite shore boundaries may perhaps be construed as sufficient to include not only any docks and buildings extending beyond such boundaries, but also the fee of the land on which they stood, and also as conveying any rights or easements in the lake and over 'the bed thereof belonging to the'grantor incident or necessary to the enjoyment of such uplands. The grant should not be construed as transferring the fee to the bed of the lake beyond this.”

The judgment of the court below also dismissed the proceeding and the Court of Appeals held that this was improper and that was another ground for the reversal.

Upon the last trial the findings of the referee were in favor of the plaintiff, except as to a certain part of the premises to which I will later refer and which are not involved in this appeal. All the preliminary matters, for -instance, as to the fact that the plaintiff is a city, that it needs for public use the lands described in the petition for the purposes of- a park and that they are the lands described in the act of 1905 referred to, and that it had acquired by purchase the greater part of the lands within said strip and, in fact, all' the essential preliminary facts are stipulated by the parties at the opening of the trial and the only question left for the referee to pass upon was the issue of title raised by the answer. The judgment among other things orders that commissioners be appointed to ascertain the compensation to be made to the defendants Henson for the property taken.

The defendant claims title from tlie State of Massachusetts by virtue of the title which -it acquired by the treaty of Hartford made in December, T786. There had long been a controversy between the colonies of New York and Massachusetts over the ownership of lands in what is now this State, and the same became acute immediately after the Revolutionary war... In order to adjust these differences commissioners were appointed on behalf of each .State and they met-at Hartford and entered into the treaty which has become famous. By it the State of New York conveyed or ceded to '-the State, of Massachusetts the western part of the present State. The easteuly line extending from Pennsylvania northward passed through the waters of Seneca lake and far into Lake Ontario and westward in that body of water and included a part of Lake Erie. The title to all the -lands west of this boundary line became vested in the State of Massachusetts. The source of title for all conveyances made in that territory since that time lias been the Massachusetts title, and its ownership to the fee of the land has always been recognized. (Seneca Nation of Indians v. Appleby, 127 App. Div. 770.)

The State of Hew York reserved from this conveyance its right of sovereignty over the lands conveyed.

It is the claim of the appellant that the waters of Seneca lake west of the boundary line referred to passed by indefeasible title to the State of Massachusetts. As already indicated, Seneca lake was a navigable body of water and it has been used from the time of this treaty and before until the present time by such boats, ships and craft as have plied the waters of the larger fresh water lakes in this State and the nation. We, therefore, start with the established fact that the lake has always been actually navigable, and in the construction. of this grant to the State of Massachusetts it is important to keep this fact in mind. In a navigable body of water it is very difficult to distinguish the sovereignty or governmental control of the State from ownership in the.land covered by the water. The manifest idea which always occurs in the consideration of a navigable body of water is that its primary purpose and its great value pertain to it because of its navigability. It is hardly credible, therefore, that the State will part title with the bed of a navigable body of water where it retains sovereignty over it, unless the language most explicitly indicates that such was the purpose.

Again, the sovereign grantor in conveying a body of water of this character would hardly be expected to retain the fee of the land under the water when it parts with its sovereignty and control over the waters which compose the lake. Consequently it has become a principle in construing a grant of this kind that before it will be made effective to transfer the title by one State to another of a body of water which is indisputably navigable it requires express language in the grant to make it effective. (Sage v. Mayor, 154 N. Y. 61, 81; Matter of Mayor, etc., of N. Y., 182 id. 361, 365; Camal Comrs. v. People, 5 Wend. 423, 451 et seq.; Commonwealth v. City of Roxbury, 75 Mass. 451, 493.)

It will be noted that the easterly boundary of the territory ceded arid conveyed to the State of Massachusetts extended far into the waters of Lake Ontario, and the northerly line was in this lake.

• Again, it does not seem possible that the State of New York, still retaining its sovereignty over this great lake, would absolutely convey to the State of Massachusetts the land upon which the waters of the lake rest. It was a general principle of the common law that the State owned the bed of all waters actually navigable which are within its boundaries, unless expressly conveyed. (Cases cited ; Seneca Nation v. Christie, 126 N. Y. 122; People v. Tibbetts, 19 id. 523; Shively v. Rowlby, 152 U. S. 1.)

In construing the efféct of a grant of this kind it is important to note the authority exercised by the contracting sovereign power over its navigable waters.. The colony of Massachusetts early in its history (Laws of 1647; Auc. Chart. [1814 ed.] 148,149; Colony Laws, chap. 63) asserted its sovereign power and title over 'all rivers within its domains so far as the sea ebbs and flows, and that was the test of navigability in that colony as applied to.running water, And the title to all beds of lakes and ponds with an area- of more than 'ten acres was also vested in the State, and this early statute has been inflexibly adhered to by the courts of that Commonwealth. (Commonwealth v. City of Roxbury, 9 Gray, 451.)

Again, the State of New York, without any question as to its authority, has for nearly a century assumed absolute dominion and control, as well as ownership, over the lake in its entirety. Many . acts have been passed by the Legislature regulating the control of the lake, directing how it should be navigated,' and appropriating parts of it wherever the State deemed it necessary for public purposes, and without paying any compensation to adjacent proprietors for the land taken. For instance, the State made an appropriation for repairing the piers and taking’ care of the harbor at the entrance of the aforesaid canal into the lake in 1862 (Laws of 1862, chap. 458); and again .iri 1868 (Chap. 715) it made an appropriation for building a pier at Geneva; and in 1870 (Chap. 767) it made an appropriation for protecting the berme bank of the canal along Seneca lake, and as early as 1825 (Chap. 271) it made the lake the terminus of the canal mentioned; and by chapter 290 of the Laws of 1828 it directed that the level of the lake be lowered. By chapter 150 of the Laws of 1827 the Legislature permitted owners of lands on the shores of tlie Seneca, Cayuga and Chautauque Lakes to erect wharves .and storehouses on the lands covered with the waters of those lakes, adjacent to the lands owned by them.” And, further, it permitted any adjacent owner erecting a wharf or wharves, storehouse or storehouses upon any land covered by these waters to use, occupy and enjoy the same as if conveyed by the Commissioners of the Land Office pursuant to an act passed February 6th, 1824 ; ” and the deeds of conveyance from 1845 down, several of them in making- the transfer of the. property included the “ docks, buildings, fixtures, rights and privileges ” which belong to the grantor. All of these acts are incompatible with any title in the riparian owners and the acceptance of the privileges accorded by the State establish an assent to the title of the State.

As early as 1868 the State was using these lands as of right for canal purposes, and denoted its easterly boundary by a blue line which extended between the defendant’s “ dock line” and the westerly shore of the lake, and that boundary remained unchanged until 1904. There was no claim by the defendant’s predecessors, or those similarly situated, that the location of this blue line or the assertion of title by the State was a transgression upon any riparian owner. By statute which took effect in 1828 these maps, approved and certified by the canal officials as those were, “ shall be received as presumptive evidence ” of the facts therein stated and of the ownership by the State of the lands therein described. (R. S. pt. 1, chap. 9, tit. 9, art. 1, §§ 4-7; Laws of 1837, chap. 451, § 6 ; Rexford v. Knight, 15 Barb. 627, 641; Carpenter v. City of Cohoes, 81 N. Y. 21, 25.) In chapter 662 of the Laws of 1900, already adverted to and which authorized the extension of the towpath, the State exercised its functions, not in appropriating the land of private owners, but in directing a State official to use the property of the State for its purposes. Some of the acts referred to may possibly have been within the compass of its sovereignty or governmental supervision reserved in the deed or cession, but many of them can only be explained upon the assumption that the State was exercising absolute ownership.

As heretofore observed, the pre-emption line which made the easterly boundary of the lands ceded by the State of Hew York to Massachusetts passed through Seneca lake. It is not reasonable to suppose that the'State of New York conveyed a part of this lake through its entire length of thirty-five miles and yet retained the fee of the remainder. .

There are certain small lakes in the State which have been designated as navigable and which, it has been held, passed to the State of' Massachusetts by the treaty of Hartford. In Smith v. City of Rochester (92 N. Y. 463) this question was .discussed in considering , the rights of riparian owners at the outlet of Hemlock lake. -While Hemlock lake has been made navigable by statute, in fact it is not of sufficient size (seven miles long and-one-half mile wide) to warrant its use for maritime or commercial purposes. It is only small boats which ply its waters and it does not come within the definition of navigable .waters which has been generally applied,' and this is true of Couverneur v. Nat. Ice Co. (134 N. Y. 365), in which the lake or pond was less than half 'a mile in length, and also in Hazleton v. Webster (20 App. Div. 177; affd., 161 N. Y. 628), and the lake there involved contained an area of only one hundred and thirty-five acres. These bodies of water were prope'rly subject to individual ownership by the riparian owners.

After all it is of very little importance whether the State of New York ceded its ownership in the bed of the lake to Massachusetts by the treaty of Hartford. For nearly a century at least., as heretofore noted, the State has constantly assumed. acts of ownership. It has granted the privilege to riparian owners of erecting docks ■ and wharves. On the part of the riparian owners, as stated above, the conveyances ran to the lake and along its.shore line. It has designated its boundary by a blue, line which is a matter of record, and in many other ways there has been a constant assertion of title by the State and with no claim by the contiguous owners of fee title by conveyance inuring to the successors of the Massachusetts ownership.

The defendant Henson, or his predecessors in interest, claim title by adverse possession. "As far back as 1853 a dock had been built out from his premises into the bed of the lake, and it will be found marked on Exhibit 6. This dock had been maintained by these successive riparian owners at least since that time uninterruptedly and the court below has held that this possession, with claim of ownership for more than forty years, has ripened into title and the judgment so determines, and there is no appeal by the plaintiff from that judgment.

Many years ago and as early as in 1863 there was an old sunken crib below the surface of the water a considerable distance out in the water from the. dock line referred to. This was a wooden framework about eight or ten feet in width, filled with stone, and there were also three old piles out in the lake at the end of the dock. There was no connection between the crib and the dock and boats and other craft upon the lake passed between the crib and the dock without let or hindrance, and the intervening space was dredged and cleaned out to enable canal boats to pass through it. In 1892 or 1893 the appellant connected this space by filling it in with earth and erected a new dock on top of the crib and used it. After the extension of-the towpath in 1901 he extended the dirt construction to the towpath. I think the building and existence under water of this small crib are not sufficiently definite and explicit acts to constitute adverse possession beyond the dock line. The crib constituted no interference with the use of the lake for navigable purposes and there was no such open notorious possession as to put the State on notice that Henson or his predecessors were claiming title to any part of the lake founded upon this submerged crib. Since the extension referred to sufficient time has not elapsed to establish ownership against the State.

I think the Legislature did not exceed its authority in permitting the State to convey the land outside of the towpath to the plaintiff. The water had become useless for navigable purposes and was of no benefit to the State. The city of Geneva was a municipal corporation, so made by the State, and the health of its citizens and the benefit of the" public demanded that this nuisance he abated, and I think the State was well within its powers in transferring the land to the city of Geneva and requiring it to convert it into a-public park.

I do not deem it necessary to consider the other questions discussed on the briefs.

The judgment should be affirmed, with.costs.

All concurred ; Hobson, J., not sitting.

Judgment affirmed, with costs. 
      
       See Laws of 1834, chap. 30.— [Rep.
     