In re State Reservation at Niagara

At this early stage of the proceedings, a question of great importance is submitted to the commissioners of appraisement, the determination of which will probably admit or exclude a large mass of evidence herein.

The owners of Goat Island and the smaller isles in proximity, claim that they, on this appraisement, are entitled to the-use of the water power afforded by the Niagara River a s it flows past them, and that the State of New York, if it takes these islands under the right of eminent domain, for the purpose contemplated by this proceeding, should compensate such owners for the value of the hydraulic power of which they would be thus deprived ; and that such compensation should embrace, not only such part of the power as has been utilized by the owners, but also the possibilities of use which may be devised or contrived in the future.

On the other hand, the representative of the State Reservation at Niagara, claims that, the Niagara River is a public and navigable stream; a boundary between the United States and the Dominion of Canada; of great magnitude and importance ; of such a character, indeed, that the old common law rule that owners of land bordering on a river take title to the middle of the stream, does not apply ; that the State has never expressly or by implication, granted the bed of the river ; that such bed, and the waters that flow over it, are the property of the State ; and that when the State,

This is the question we are now to pass upon.

The patent of the State to Augustus Porter, dated in 1816 (together with patents of the main land, opposite), granting Groat and the small attendant islands, has been laid before us. It is a grant of the islands as such, stating that they contain about sixty-two acres, and containing no words which evince any expressed intent to convey anything more than the sixty-two acres, nor the land under water outside of the boundaries of the islands. If the State had entertained an affirmative intention to convey by this grant any part of the river bed, it could have effectuated that intent by the language of the patent. Not having done so, it leaves the claim of the grantees to rest upon constructive implication; so that the question arises whether by such a grant, the title of the grantees is extended, by implication, beyond the boundaries mentioned in the grant—to wit: the islands—into the bed of the river. This must depend upon the rules of construction, adopted by the courts of .New York, as applied to grants of land upon running rivers.

An inference of some strength against any intent of the State to convey the bed of the stream by this patent, may be drawn from the very fact of the patent itself; for, if the principle claimed by the owners is applicable to this patent, no reason is obvious why it should not have been equally applicable to the prior patent of the main land opposite, in 1814, to Porter & Barton; in which event there would have been no necessity for the patent of the islands in 1816, as they would thus have passed, by construction, from the

Does the law put such a construction upon this grant, as extends the title of the grantee beyond the island and into the bed of the river 1

By the well-known common law rule, grants of land bounded on a navigable river conveyed only to the margin of the river, but, where bounded on,a non-navigable river, they were held, by construction, to be bounded by the center of the stream, and to convey the bed of the river, usque ad medium files.

By the law pronounced by the courts of New York, the rule of construction which carries title to the middle of the stream does not apply where grants of land are bounded on navigable rivers, or on those which form the boundaries between nations or States. And so the principal question to be discussed here, is, whether the Niagara River is either a navigable or a boundary stream, or both.

In the exhaustive oral argument before us, as well as in the various voluminous briefs submitted, since, —that of Ansley Wilcox, Esq., representing the commissioners of the State Reservation at Niagara; of Hon. E. C. Sprague, of counsel for the proprietors of Groat Island and the other isles; and of L. N. Bangs, Esq., on behalf of Mr. Woodruff and the Niagara Falls Paper Manufacturing Company, occupying a portion of Bath Island ;—the whole domain of law on the subject of riparian ownership and rights has been industriously explored; the authorities, elementary and judicial, of England, of our sister States, and of New York, brought under review ; the doctrines traced back to their origin ; the principles arranged and classified; the distinctions pointed out and deepened ; and every aid furnished which research could develop, or labor and ability marshal and enforce. But we do not think it necessary to enter upon this broad field

If, as is claimed, it shall be found, on tracing the law of riparian ownership to its source, that the expressions of our own judges have gone beyond the logical results deducible from the admitted premises, it will be for our appellate court, and not for us, to make the correction. In passing, however, it is proper to say, that these decisions are in unison with the conclusions we should arrive at, were we to dispose of the questions on principle instead of on authority.

The supreme court, to which, by the act under which this commission was appointed, is given the review of our action and judgment,—and those decisions therefore are of controlling force with us,—has been called to apply the doctrine of riparian rights and ownership, ’to the very river which is the subject of our consideration.

In Kingman v. Sparrow ( 12 Barb. 201 ) it is announced as the judgment of the general term in the eighth district—within whose jurisdiction the locus in quo is situated—that the common law rule, as applied to grants bounding premises on rivers, has no application to lands bounded on the Niagara River, on the grounds that it is both a navigable and boundary stream. This decision stands unreversed, and has not, so far as we have seen, in any adjudicated case, been subjected to hostile criticism. It makes the law for us in regard to this river, and relieves us from the necessity of an extended study of the decisions in England ; or in the States of the Union ; or even in

We consider these- two cases as express decisions

The Niagara river, like the St. Lawrence, seems to

Whatever conflict has taken place in the courts of New York in reference to the extension of the rights of riparian owners into the beds of navigable rivers, there has been none, we believe, in relation to streams

Those judges who have maintained the applicability of the common law rule to our inland, fresh wafer, navigable streams, have excepted boundary rivers from the rule; witness the dissenting opinion of Chancellor Walworth in the case of Canal Appraisers v. People ( 17 Wend. 570 , 597, 598) and the opinion of Chief Justice Rug-re in the very recent case Smith v. City of Rochester ( 92 N. Y. 463 , 479). Ho case can be found, we think, in the courts of Hew York, where any intimation is thrown out, much less decision made, that, in the case of empire-dividing streams, especially of such magitude and dignity as the St. Lawrence and the Hiagara, and having the navigable qualities they possess, the law, without unmistakable affirmative grants from the State conveying the title, has permitted the proprietors of the land bounded on such streams, to.extend their ownership, by implication, beyond the margin of the rivers and to the center of their beds.

It would be impossible to render any decision on this question which should quadrate with the authorities of all the States ; for the tribunals ot’ some of them implicitly follow and adopt the common law rale in all particulars, while those of others, and especially of our own State, give consideration to the different geography and changed circumstances to our country from those of the land where that rule originated ; and have regard to those majestic streams which gather their power and immensity, not, as in England, from the ebb and reflux of salt water from the ocean, but from the mountains and extensive watersheds of the interior, and which are far removed from tidal influence. We think it well established as the law of this State that a river of the importance, dimensions and navigability of the Hiagara, and parting two nations,—in

It is argued that the late case of Smith v. City of Rochester ( 92 N. Y. 463 ), already referred to, has weakened the force of prior decisions in this State, as establishing the public rights to the bed of inland navigable rivers. But it seems unnecessary for us to analyze that high authority, inasmuch as it expressly excepts “ streams forming the boundary line between States ” (p. 479) from the rule restricting the right of the State in the absolute control and proprietorship of the bed of the rivers. The Chief Justice cites, with, approbation, the case of the Canal Commissioners v. People ( 5 Wend. 423 , 446), in which Senator Beardsley says (p.462): ‘"It is therefore preposterous to contend that the limited doctrines of the common law, are applicable to the Mississippi, Ohio, Susquehanna, Niagara and St. Lawrence. If applicable, the owners of land on those streams have a right to go to the centre oí' the rivers, and Grand Island, in the Niagara with 18,1 00 acres, would belong to the owner of the shore.”

It is claimed by the owners of the Island that the interruption of navigation at the point in question caused by the great cataract, and the impetuosity of the waters for some distance above, and the dangerous swirls below, extending, it may be, for several miles, take away the navigable character of the river at this point, and subject it to the common law rule as to riparian ownership of non-navigable, fresh water streams.

In the case of Canal Comm’rs v. People ( 5 Wend. 423 ), and Canal Appraisers v. People (17 Id. 570, 571 ), damages were claimed for the destruction of a water

So, the Mohawk river is held to be a navigable river, although its navigation is interrupted where, at Little Falls, it forces its way through the rocks, and flows through deep ravines (People v. Canal Appraisers, 33 N. Y. 461 ), and also where, at Cohoes, one mile from its mouth, it falls over a precipice of seventy feet in perpendicular height.

A river navigable in its general character does not change its legal characteristics in that respect, by a disturbance which, at a given point, breaks the continuity of the actual navigation. And we are, therefore, obliged to apply to the Niagara Eiver, at the Falls, the same principles which govern navigable streams; and to hold that the owners of Goat Island, and the other isles, do not carry their title to the middle' of the stream, nor even to the middle of the American portion of the stream, but only to the boundary of the islands; that the bed of the river surrounding those islands belongs to the State, as do the waters that flow over it; and that whatever rights, short of prescriptive rights, may be claimed by the island proprietors, in the use of the waters running past their premises, they are subject and subordinate to the rights of the State, as owner of the bed of the river, and may be lawfully terminated whenever the State may-choose to resume its sovereignty, as it may, at any time, without cost or liability to such proprietors for any damage to them (People v. Tibbets, 19 N. Y. 523 , 528). In addition to this, it is not to be forgotten, that notwithstanding this impediment in the actual navigability of the river, the frontier character of the

It is also contended by the counsel for the Island riparians, that upon the grant of the islands, a new -filum aguce was established, not only between them and the main land, but new ones between the islands themselves; that the floods which rush through the narrow interspaces can be regarded neither as navigable nor boundary streams ; and that it follows that the common law rule applies at those places, giving the island owners title, on each side respectively, to the center of the stream dividing the isles. But we think the river is to be considered as one river—a navigable and boundary stream—and that, though its great volume flows between these islands and the Canadian shore, and another portion,—perhaps a third part,— between such islands and the American shore, and smaller portions—very small indeed as compared with the great floods of the strait,—force their way between the anchored islands near the verge, yet the whole river does not, by any of these short divisions, change the nature of its entirety and become so many inconsiderable and different streams, losing the character it held before it took these smaller channels to the Falls, and which it again resumes immediately below.

Unless the owners of Goat Island take title to the middle of the stream as between that, island and the Canadian line, or, at least, between it and the American shore, we think they cannot be such owners— tosque ad filum aguce—between Goat Island and Bath, nor between Goat and Lunar Islands.

The conjectures of the counsel for the island proprietors that possible modes of using the waters, as a hydraulic power, may be devised, yet unknown, or, at least, unapplied, as by trenching the isles and sending the current through them, instead of obtaining by wing-dams the power from the bed of the river out-'

The question remains to be considered as to such portion of the water power as is, or has been, utilized, whether such use is of such a character and has existed for such a length of time, that it can give to the parties a right to it by prescription. This question we reserve for future consideration, thinking it better3 in the few cases for which the right is claimed, to act upon the evidence in that behalf which may be submitted.

Pratt, Comr., concurred in the results announced in the foregoing opinion.

Hale, Commissioner. First. As to the ownership of the bed of the river.

It is claimed by the land-owners that the common law rule, in respect to fresh water rivers, applies to the Niagara, and that the riparian owners claiming under the grants of the State to Porter and Barton, and to Barton individually, own to the medium jilum aquae.

The contrary of this doctrine has been held by the general term of the supreme court, sitting in the eighth district, in the case of Kingman v. Sparrow, 12 Barb. 201 . This general term decision has been followed by Mr. J. Gr. Milburn, as referee, in the case of Hensler y. Hartman, in an able and carefully considered opinion.

The inapplicability of the common law doctrine to the Niagara River, has been recognized and admitted in every other reported case in this State to which our

If, therefore, we were inclined to take a different view of the question, as one of principle, we should not feel justified in disregarding the opinions so universally expressed by the courts of this State. We must hold, therefore, that the State is the owner of the bed of the Niagara River.

Second. Does the non-navigability of that portion of the river adjacent to the property in qtiestion, resulting from the rapids and falls, lead to any different result as to such portion of the river ?

There is no doubt that at common law a river may be partly navigable and partly non-navigable. The portion of a tidewater stream which is above the ebb and flow of the tide, is not at common law a navigable stream, and to the bed of such streams above tidewater the common law rights of riparian owners attach. The reason of the rule seems to have been, that, ordinarily, actual navigability does not extend up tidewater streams further than the ebb and flow of the tide, for the reason that such streams in England, above tidewater, are ordinarily too shallow, and contain too little water for the purposes of navigation. In the case of the Niagara River, however, the difficulties of navigation do not result from a want of water. No one can question that there is water enough passing the Rapids and Falls to float the commerce of the world. The river is navigable above the Rapids, and is also navigable below the Falls. The question is, whether a different rule as to title can be laid down for that section of the river which is rendered unnavigable by rocks, sudden descents and precipices ? We do not see that-such a distinction is practicable, nor have we been referred to any authority requiring us to so hold.

In the case of Morgan v. King, 35 N. Y. 454 , relied

In the case of The Montello, ( 20 Wall. 430 ), the Pox river, Wisconsin, was held to be a navigable water of the United States, and the fact that there were obstructions to an unbroken navigation was held not to prevent it from so being. Judge Davis says, in his opinion : The vital and essential point is, whether the natural navigation of the river is such that it affords a channel for useful commerce. If this be so, the river is navigable in fact, although its navigation may be encompassed with difficulties, by reason of natural barriers, such as rapids and sand-bars.” (p. 443.)

Third. It is claimed by the landowners that the portion of the Niagara river lying between Goat Island and the main shore, is to be considered as a separate stream, which is not navigable, and that therefore the grant of the main land to Porter and Barton, gave them title to the middle of the stream, and the subsequent grant of Goat Island to Porter gave him title from the island eastward to the middle of the stream

After the taking of evidence had been completed, and the merits of the questions presented argued by counsel, the following final decision, signed by all the commissioners, was delivered.

By the Commission.—Hale, Commissioner.—The commissioners of appraisement have entered upon the duty of ascertaining the values of various pieces of

We are cited to cases where it is held that the grant of an island by the owner of the bed of the stream and the main land, gives title to the middle of the stream, between the island and the shore. But these are cases of a non-navigable river, where the bed is the property of the riparian owner. The contrary of this is held as to a grant of an island in the Mississippi, in McManus v. Carmichael ( 3 Iowa, 1 ). We do not think that the patent of 1816 gave to Mr. Porter any title to the bed of the stream, in either direction from the islands.

Fourth. We think it is thoroughly settled in this State by authority, that where the State owns the bed of the stream, a riparian owner is not entitled to compensation for being deprived by the State of the use of the waters. The riparian owners may and doubtless have rights to these waters as against each other, and as against other private parties, but as against the State they have not such right, unless acquired by express grant, or by prescription raising a presumption of a grant. There is no claim here of an express grant. We think it best to receive any evidence offered to prove a prescriptive right, reserving the questions whether such right can be acquired as against the State, and if so, whether it has been so acquired and to what extent, and by whom, for further consideration.

1. As to the water power. The commissioners have not thought it necessary to decide the question which was so very thoroughly and ably argued before them, as to whether a prescriptive right to the use of the waters of the Niagara River can be obtained as against the State.* Differing somewhat in their views as to the strict legal question, they have concurred in the belief that it was just and proper to make allowance for such water power where it is now in use, and has been for the period prescribed by statute. They have, therefore, practically decided this question in favor of the claimants, and have allowed what in their judgment is the

* See briefs of counsel on this point reported at the end of this-case.

2. As to the residence property, so called. In regard to the lots extending from Buffalo to River streets, of which a small portion of the River street end is proposed to be taken, we have been unable to concur with the opinions of the witnesses for the owners as to the extent of damages that the residue of the property would sustain in consequence of the taking. It has not seemed to us that such damage would be by any means as serious as apprehended by them. We cannot believe that the commissioners in charge of the State reservation or park, for the purpose of preserving the scenery, will so manage it that it will be a nuisance or an injury to the adjacent owners. It has seemed to us also that in most cases the owners of the property have not heretofore attached that extreme value to the river front of these premises and the views therefrom, which they now seem to attribute to them. This is shown by the fact that in many cases they have, by planting or maintaining trees, effectually deprived themselves of such views, and that in some instances they have built their barns and stables upon the part, of the lot commanding the finest views, while they have fronted their residences on Buffalo street. At the same time, the fact that they lose the legal control of this part of their lots, somewhat to the detriment of the residue, has been taken into consideration in making our estimates. We have intended to award in each case, (1) the full value of the land and buildings proposed to be taken, and (2) such compensa

3. Gloat Island and Prospect Park. The appraisal of these two parcels has been attended with peculiar difficulty. They are both what may be termed unique parcels. There is no other property like them. Their value cannot be estimated by ascertaining what similar pieces of property in that vicinity have been sold for, because there are no similar pieces of pi’operty. Opinions of witnesses as to value are usually confined to market value, and as there is no market value to these parcels, opinions are valuable only as they are based on some facts, from which, as made known in the evidence, it is the duty of the commissioners to draw their own conclusions. Groat Island (and in using this term we include therewith all the adjacent or appertaining islands—Luna, and the Three Sisters, and others), contains some sixty-two acres. These islands are in their natural state, and considered without reference to income, far the most valuable piece of property propose to be taken. They command the greatest variety of beautiful and magnificent views of the Falls and the Bapids. In exten t they are much greater than Prospect Park. They are absolutely necessary to a State reservation at Niagara, for a reservation, or park, not including these islands, would do little towards satisfying the desire of the public for a park, which will give to the people of the

In estimating the value of these properties several considerations have been presented to us :

(1.) Appeal has been made to sentimental considerations. Counsel have been eloquent with reference to the beauties of Niagara Falls. They have spoken in fitting terms of the far-sounding roar of the cataract. the magnificence of the clouds of spray rising from its base, the rushing of the rapids, the splendor of the rainbows, and the general grandeur and beauty of the natural scenery visible from the islands and from Prospect Park. The tumultuous sound of the waters has been well likened to the “ voice of God,” and it was asserted that there was a certain dignity in the ownership of this property, amounting to almost a patent of nobility; and for this it was claimed that due compensation should be made. Considerations of this kind can have very little weight with us. The question involved is not poetical but eminently practical. The claimants, though they own the land under grants from the State of New Y ork, have no title to the rushing waters ; they do not own the pillars of spray that rise from the foot of the cataract, nor have they any title to the rainbow to be seen from Luna Island; we have held that they do not even own the bed of the river. The State of New York never owned and could not grant the running water, the spray, or the rainbow, or the roar of the cataract. These are not subject to human proprietorship ; they are the gift of God to the human race, and no one claiming under a grant from the State of New York can arrogate to himself any dignity or “patent of nobility” by reason of such ownership. These wonders of nature confess no human authority or control. What the present claimants have obtained under the grant from the State, is a legal right to exclude others from certain

(2.) We have considered somewhat the valuations heretofore practically put upon this property by the owners. In the absence of any evidence of market value this has seemed a necessary element in coming to a conclusion. It is unnecessary here to go into details on this subject. The highest price ever put upon the Goat Island property by its owners in the conveyance of undivided interests to each other has been about $410,000. An individual interest sold at public auction brought a much less proportionate value. In regard to Prospect Park the highest valuation that has ever before this appraisement been put upon it practically by the owners has been that at which the property was last capitalized, namely, $280,000. We have not, as our awards will show, considered these prices as controlling, but have given them some weight.

(8.) Opinions of witnesses in these cases, as already

(4.) The income of the premises. The general rule, as we understand it, is that while rental value may be considered in estimating actual value, the profits of a

• But there are limits to the addition that can reasonably be made from this consideration. These islands were granted to Augustus Porter in 1816. That was before the time of railroads, although it was after the application of steam to the uses of locomotion upon water. The deed to Augustus Porter expresses no consideration except the payment of certain ;back taxes. How much these were is not shown, nor .are we informed what was actually paid for the grant. It' is fair to presume, however, that it was not a large sum, probably not one-hundredth part of the amount of our award. Suppose the legislature of 1817, con-winced of the folly of the grant of the year previous, .had enacted a law similar to that of 1883, for resuming possession, having had the sagacity to foresee that it was not for the advantage of the State that any individual should control the right of access to the scenery of the Falls, and that a commission had in that year been appointed to determine the compensation/to be paid to Augustus Porter. The Falls, and the Rapids, the spray and the rainbow, were quite as grand and 1 beautiful then, as now. Suppose some sagacious witness had been called who foresaw the immense strides in population and in the facilities of travel which this country has taken since that time, and had given as his opinion that in the course of sixty or seventy years by proper management the island might be made to produce to its owner a net income of some $10,000 to : $15,000 a year, and that in his honest opinion the property was worth $300,000. Can it be believed that .at that daté, such a proposition would have been listened to for a moment, or that it would not have met with universal ridicule, or that such a demand, made then by the owner, for a piece of property which had

(5.) In regard to Prospect Park, the position is different. The actual income there is proved to have been larger than that of the Goat Island property. 'The average net annual income for eleven years since its organization is proved to have been over $16,000. For the last three it has been about $22,000. If this is tobe considered the assured permanent income of the property, the estimates of the witnesses on the part of the owners might not be considered very extravagant. But there are some elements of permanence lacking in this case. In order to continue to procure this net income, the receipts must be kept, up and the expenses kept down. It may readily be seen that neither of these events is certain. There are many things which may lessen the receipts, although perhaps the probabilities are in favor of their continuing or increasing ; but it seems to us that there will be very serious difficulties in keeping the expenses down. Two items seem to us of great importance in connection with this subject; first, the expense of management. It is evident that Mr. Townsend’s services had been invaluable to this company but he has not been paid for

Thus it will be seen that the “prudent purchaser” might add from $13,000 to $18,000 at once to the annual expenses to which he was liable to be subjected, and thus the probable future net income be reduced by this amount. Again, he should take into consideration the fact that some portion of the income is derived from a ferry, which is operated without license from any authority in this State.

Still, it must be conceded that the property is a valuable one. It has for the last two years paid a dividend of seven per cent, upon a capital of $380,000. Before that it had paid a similar dividend upon a capital of $150,000. We have, therefore, in view of the financial prosperity of the company and the large income it has derived from the property, awarded to the owners a full and extremely liberal compensation, the sum of $335,000. In the case of both these properties we have awarded somewhat more than the highest estimate made by any witness called on the part of the State.

It seems unnecessary to comment upon any other of the awards which we have made, other than to say that we have endeavored, while-rejecting merely speculative values, to award to each owner full and liberal compensation for the property proposed to be taken.

Note on the Acquisition op Riparian Rights by Prescription.

In the case in the text, the Commissioners did-not pass upon the question whether the riparian owners on the shore of ilie Niagara River, or the owners of islands in the stream, could acquire by prescription as against the State, the right to use the water power.

Upon the negative of this question, the points and authorities found in the brief of Ansley Wilcox, Esq., of counsel for the State, are here condensed.

By the English law, prescription can be asserted of a purpresture but not of a nuisance. Gould on Waters, §§ 21, 22, 93, 93a, 167, 168, 212, 532. See Houck on Rivers, §§ 800-310; Angelí on Watercourses, §§ 554-561.

The rule in this country, and particularly in this State, is that any encroachment upon a strictly navigable and public stream is a public nuisance, whether it is a material hindrance to navigation or not. Wood on Nuisances, §§ 628-653. No right to continue a public nuisance can be obtained by prescription. Ib. §§ 710-746.

This doctrine is not based upon the impossibility of presuming a grant, since the State can legalize obstructions in navigable waters, subject only to the power of Congress to regulate interstate commerce. See Wood on Nuisances, § 628, et seq.; Houck on Rivers, chap. 7, especially § 209; Langdon v. Mayor of N. Y., 93 N. Y. 129 ; People v. N. Y. & S. I. Ferry Co., 68 N. Y. 71 . The true basis of this doctrine is to be found in the proposition that every continuance of a public nuisance, is in itself a fresh erection of the nuisance in judgment of law. Wood on Nuisances, § 726; Renwick v. Morris, 7 Hill, 575 ; Brown v. Cayuga, &c. R. Co., 12 N. Y. 486 ; Conhocton Stone Co. v. B. N. Y. & E. R. Co., 52 Barb. 390 ; Vedder v. Vedder, 1 Denio, 257 ; Beckwith v. Griswold, 29 Barb. 291 .

The following are all the cases in this State which have any bearing on this question: St. Vincent Orphan Asylum v. City of Troy, 76 N. Y. 108 ; Babcock v. Utter, 1 Abb. Ct. App. Dec. 27 , 37; Jackson v. Babcock, 4 Johns. 418 ; Luce v. Carley, 24 Wend. 451 ; 1 Washb. on Real Prop. 400 n.; Walker v. Caywood, 31 N. Y. 51 ; 41 Penn. 270 ; Bliss v. Johnson, 94 N. Y. 235 ; Doe v. Thompson, 5 Cow. 371 ; Thompson v. Burhans, 79 N. Y. 93 , 99; Mills v. Hall, 9 Wend. 315 ; Dygert v. Schenk, 23 Wend. 446 ; People v. Cunningham, 1 Denio, 524 ; Furman v. Mayor of N. Y., 5 Sandf. 16 ; Kellogg v. Thompson, 66 N. Y. 88 ; Rochester v. Erickson, 46 Barb. 92 ; Gillespie v. Forrest, 18 Hun, 110 ; Milhau v. Sharp, 27 N. Y. 611 ; Ogdensburgh v. Lovejoy, 2 T. & C. 83; afl’d in 58 N. Y. 662 ; Campbell v. Seaman, 2

The foregoing cases clearly establish certain distinctions: 1st. In the cases relating to obstructions in highways or rivers where the public does not own the fee, but only an easement of the passage, it is generally held that such obstructions do not amount to nuisances, unless they are practical and material interferences with the public right. 2nd. The cases relating to encroachment upon rivers and highways by persons claiming authority from the legislature are clearly distinguishable from the case at bar. So long as the authority has not been exceeded, no act under it can create a nuisance. 3rd. The dicta in some of the earlier cases which conflict with the proposition above stated, are based on .the English doctrine distinguishing a nuisance from a purpesture, which distinction does not now exist in this State. Furman v. Mayor, &c. of N. Y., 5 Sandf. 16 ; Wetmore v. Atlantic White Lead Co., 37 Barb. 70 . 4th. There is a class of cases which hold absolutely that any encroachment upon a public river is, in New York, a purpresture, and per se, a nuisance, whether it be an actual interference with the public right of navigation or not. The leading case on this subject is People v. Vanderbilt, 38 Barb. 282 ; 26 N. Y. 287 ; which is followed in People v. N. Y. & S. I. Ferry Co , 68 N. Y. 71 , supra; and the same principle is laid down in several of the cases above cited.

Taking this rule in connection with the doctrines laid down in Crill v. City of Rome ( 47 How.Pr. 398 ), and Burbank v. Fay ( 65 N. Y. 57 ), it appears to be clearly established that the land-owners at Niagara Falls cannot have established a prescriptive right to encroach upon the river bed, and use the water power as against the State. Whether this conclusion is based upon the theory that their acts have created a

II. As to the proof necessary to establish a prescriptive right to use the water power of the Niagara River.

(а) The period of prescription is to be computed in analogy to the time fixed by the local statute of limitations as limiting the right of entry upon lands (Colvin v. Burnet, 17 Wend. 564 , 567; Parker v. Foote, 19 Wend. 309 ; Miller v. Garlock, 8 Barb. 153 ; Hammond v. Zehner, 23 Barb. 473 ; Wood on Nuisances, § 701; 2 Washb. on Real Prop. [4th ed.] 318, 319, 322, 330 ; Vol. 3, Id. 52; Angelí on Watercourses, §§ 208, 209, 372, 375, note 4),and only the statutes as to limiting action by the people of the State apply since the State was originally the owner of the bed of the river and of the water power. People v. Denison, 17 Wend. 312 ; People v. Livingston, 8 Barb. 253 ; People v. Arnold, 4 N. Y. 508 ; People v. Trinity Church, 22 N. Y. 44 .

Prior to 1830, the limitation of an action by the people for real estate was forty years ( 2 L. 1788 , c. 43, § 1; 1 R. L. 1801, p. 562, c. 183; 1 R. L. 1813, p. 184, c. 183), and was then made twenty years, by the Revised Statutes (2 R. S. 392, §§ 1, 2;, which limitation continued in force until 1848, when the Code of Procedure (§ 75) changed the limitation to forty years, as it now remains (Code Civ. Pro. § 362).

The statute of limitations affects the lemedy only, and unless otherwise indicated by its terms, operates upon existing demands as well as upon those which arise in the future. Acker v. Acker, 81 N. Y. 143 ; Johnson v. Albany, &c. R. R. Co., 54 N. 7. 416. But it has been frequently held that neither of the statutes above referred to affects causes of action and.rights of entry upon land which existed before they took effect. Appleby v. Brown, 24 N. Y. 143 ; People v. Denison, 17 Wend. 312 ; Champlain & St. Lawrence R. R. Co. v. Valentine, 19 Barb. 481 ; Van Alen v. Feltz, 4 Abb. Ct. App. Dec. 439 . See other cases cited in 4 Abb. N. Y. Dig. 245, 246.

It follows, first, that where the adverse use of water power began before January 1, 1830, it must be shown to have been continued for forty years uninterruptedly; second, that where such adverse use began after January 1, 1830, and before July 1, 1848, it must have continued twenty years; third, that where such use began since July 1, 1848, it must continue forty years. See Champlain & St. Lawrence R. R. Co. v. Valentine, 19 Barb. 484 ; La Frombois v. Jackson, 8 Cow. 589 .

(б) The burden of proving a prescriptive right is upon the party asserting it. Wood on Nuisances, §§ 709, 710, 712; Gould on Waters,

(c) The land-owners’ prescriptive right to use the water power must be measured strictly by the user, and not by the claim under which they were acting. Washb. on Real Prop. 4th ed. vol. 3, pp. 321, 322, 330, 331; vol. 3, p. 54; Wood on Nuisances, §§ 704, 710-712, 717; Miller v. Garlock, 8 Barb. 153 ; Stiles v. Hooker, 7 Cow. 266 ; Russell v. Scott, 9 Cow. 279 ; Rexford v. Marquis, 7 Lans. 249 , 261, 263; Angell on Watercourses, §§ 224, 379; Corning v. Gould, 16 Wend. 529 .

(d) The use must have been uninterrupted and continuous, Washb. on Real Prop. 4th ed. vol. 2, p. 326, et seg.; Gould on Waters, §§ 335, 336; Wood on Nuisances, §§ 703, 716, 719; Colvin v. Burnet, 17 Wend. 564 ; Miller v. Garlock, 8 Barb. 153 ; Parker v. Foote, 19 Wend. 309 ; Postlethwaite v. Payne, 8 Ind. 104 ; Stein v. Burden, 24 Ala. 130 ; 2 Washb. on Real Prop. 328; Campbell v. Seaman, 63 N. Y. 568 , 585.

(e) And the use must have been clearly adverse,—that is, an actual interference with the rights of the State and not under its permission. Townsend v. McDonald, 12 N. Y. 381 ; Flora v. Carbean, 38 N. Y. 111 ; 2 Washb. on Real Prop. 322, and cases cited; Wood on Nuisances, §§ 712, n. 2, 716, 727; Angelí on Waters, § 219; Gould on Waters. § 339; Colvin v. Burnet, 17 Wend. 564 .

(f) The use must be not only adverse to the interest of the owner of the servient tenement, but also acquiesced in by him, in order to give rise to a presumption of a grant and create a prescriptive right. 2 Washb. on Real Prop. § 326; Wood on Nuisances, § 715.

Lucius N. Bangs, Esq., on behalf of the Niagara Falls Paper Manuf. Co., on the other hand contended, that such right to use the water power could be and liad been acquired by prescription.

The only question is, has the adverse use continued for such length of time as to establish the presumption of a grant against the State ? The evidence discloses the fact that a paper-mill was constructed and operated as far back as 1884, upon the site of the present mill; and the statute of limitations, which was then twenty years, commenced running under that limitation and continued under that notwithstanding the change in the period of limitation made by the Revised Statutes in 1830. Champlain & St. Lawrence R. R. Co. v. Valentine, 19 Barb. 484 . The contention that the occupancy of the stream was no obstruction in navigable waters, and therefore a nuisance which

This company is not guilty of erecting a nuisance unless such erection renders proper passage of bouts, etc., inconvenient or unsafe. Ex parte Jennings, 6 Cow. 518 ; Chenango Bridge Co. v. Paige, 83 N. Y. 178 , 185. See the opinion of Senator Beardsley in Canal Appraisers v. People, 17 Wend. 570 ,606. It is not necessarily a nuisance to erect an obstruction in a stream used to a limited extent for transportation, as for floating logs and such like uses. Lancey v. Clifford, 54 Maine, 487; Morgan v. King, 35 N. Y. 454 ; Ledyard v. Ten Eyck, 36 Barb. 102 ; 1 R. S. 7th ed. 573, § 67.

The immediate and continued use by this company of the water for manufacturing purposes, is to be considered in construing the grant, if the language thereof is in any way questionable. Jackson v. Wood, 13 Johns. 346 ; Owen v. Bartholomew, 9 Pick. 520 ; Chad v. Tilsed, 2 Brod. & B. 403, 406.