
    The Knickerbocker Ice Co., App’lt, v. George S. Shultz and Charles A. Shultz, Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 29, 1889.)
    
    Riparian owners. — Injunction against erection oe pier.
    The grantee of land under water is not entitled to an injunction restraining adjoining owner from erecting a pier extending over lands under an water granted to the latter, on the ground that such pier would interfere with his towing ice across such lands to his premises.
    Appeal from a judgment of the general term of the supreme court, third department, reversing a decree of the circuit awarding an injunction to the plaintiff and dismissing the complaint in the action on the merits.
    The plaintiff and defendants are adjoining owners of uplands on the west shore of the Hudson river. The plaintiff’s grantor, in 1859, built a wharf below high-water mark and opposite to its adjacent uplands. Upon this wharf was erected an ice-house, which was filled by an elevator situate at the extreme southern end of the wharf. The house was filled with ice taken from the-cove or bay to the south In 1873 the commissioners of the land office granted the lands under water, in front of the uplands, to plaintiff’s grantor. Subsequently this plaintiff purchased the uplands, together with the land under water in front of the uplands covered by the grant referred to. The defendants are brickmakers, owning and occupying lands adjoining the plaintiff .on the south. In 1877, four years after the grant to the plaintiff, the commissioners of the land office made a grant to the defendants of' the lands under water opposite their premises. Upon the wharves- and uplands owned and occupied by the defendants there were annually manufactured between six and seven millions of brick. In order to reach the market, it was necessary to transport the brick over the fiats or shoal waters to the channel of the river. All the-coal, wood, and a portion of the sand used in this business, also had to be brought by vessel over the flats to defendants’ yards.
    The depth of water on these flats is about five feet and not sufficient ordinarily for the uses and purposes of the defendants, whose vessels drew on the average about nine feet of water. In 1883 the defendants commenced the construction of a pier or dyke-for the purpose of forming a channel which should enable the vessels to get in or out. It was partly constructed and dredged along the side, by means of which a depth of nine feet of water was obtained. Without the pier or dyke a channel across these fiats could not be maintained, because it would soon become filled up by the action of the tide and wash that comes from the land over the wharves. This pier or dyke was constructed wholly upon the lands covered by the grant to them. It was not included in the grant under which the plaintiff claims. The plaintiff or its grantor from the time of the construction of the ice house in 1859 had been accustomed to cut ice in the cove or river wherever it could be found of sufficient clearness and thickness, and then by means of a canal cut in the ice across these flats it was towed to the elevator. This canal was usually cut over the lands under water now covered by the grant to the defendants and upon which they have constructed a dyke which will of necessity prevent the plaintiff from towing ice over the same course as before.
    
      James B. Olney, for app’lt; E. S. Wood, for resp’ts.
    
      
       Affirming 24 N. Y. State Rep., 479.
    
   Parker, J.

The state has succeeded to all the rights of both Grown and Parliament in the navigable waters and the soil under them. Langdon v. Mayor, etc., of New York, 93 N. Y., 129.

Through the medium of the legislature the state may exercise all the powers which, previous to the revolution, could have been exercised either by the King alone, or by him in conjunction with his Parliament, subject only to those restrictions which have been imposed by the constitution of this state or of the United States. People v. N Y. & Staten I. Ferry Co., 68 N. Y., 71.

The right to navigate the public waters and to fish therein are public rights belonging to the people at large. In that respect every individual has the same right. The riparian proprietor cannot interfere with such user by the public. Should he attempt to appropriate to his own use the lands under water in front of his premises, and to that end should build thereon, it would constitute a purpresture which the state could remove. People v. Vanderbilt, 26 N. Y., 293; People v. N. Y & S. I. F. Co., supra.

The state, then, having full power and control of the lands under water between high and low water mark, by the several enactments of its legislature vested the authority to dispose of the same in a body known as the “ Commissioners- of the Land Office.” Chap. 67, Laws of 1786, and the several acts amendatory thereof and supplementary thereto. Among other limitations in the grant of power, in such respect, to the Commissioners of the Land Office, is the following: “Provided always that no-such grant shall be made in pursuance "of this act to any person whatever other than the proprietor or proprietors of the adjacent lands.” The plaintiff, in 1873, obtained from the Commissioners of the Land Office a grant of the land under water in front of its uplands, the lateral limits of which were perpendicular to the shore. They could acquire no more. People v. Schermerhorn, 19 Barb., 510.

However, in the use which it made of the property obtained finder its grant, the plaintiff was accustomed, during a period of about four weeks in the year, to tow ice cakes over the lands under water in front of the uplands belonging to the defendants. Subsequently, and in the year 1877, defendants obtained a grant from the Commissioners of the Land Office, which grant recited, among other things, that the grant was to the defendants “for the purpose of beneficial enjoyment of the same by the adjacent owner.”

Thereafter, in the year 1883, the defendants, within the lines of their grant, commenced the erection of a dyke which the plaintiff alleges will interfere with the nse to which it has devoted its land, because it will prevent the towing of ice cakes to that portion of its wharves where its elevator is now situated. Now, it will be observed that the plaintiff’s grant does not include the locus in quo. If it did it would be void because made to one other than the proprietor of the adjacent uplands. It has not acquired a right by prescription, for where no express grant can be allowed the law will not resort to the fiction of an implied grant for the purpose of creating a prescriptive right. Burbank et al. v. Fay et al., 65 N. Y., 57.

It follows, then, that the appellant has not acquired any legal right or interest in or to these lands under water, or the waters covered by the respondents’ grant, either by grant or prescription, and therefore it is not in a position to question the character of the structure which the defendants constructed upon the lands covered by the grant to them.

It is unnecessary to consider the question as to whether the dyke which the defendants have erected is permissible under the grant which they hold. For, assuming that it could be determined that it constituted either a purpresture or a nuisance, the plaintiff could not maintain an action for its abatement. A purpresture is an invasion of the right of property in the soil while the same remains in the people. A nuisance in such a case as this must be an injury to the common right of the public to navigate the waters. People v. Vanderbilt, 26 N. Y., 293.

And these questions can only be tested in an action at i;he suit of the people. Eden on Inj., § 9, p. 259; Lansing v. Smith, 8 Cowen, 151; People v. Vanderbilt, supra; People v. N. Y. & S. I. F. Co., supra.

The judgment should be affirmed.

All concur.  