Majority
p. 533CHARLES PARTRIDGE, Appellant, v. ALBERT C. EATON, Respondent.
Headnote
Sunning stream—powen' of legislature lo declare it to le a highway— Chapter 273, Lems of 1872 — meaning of words, ‘1riparian owners ” in.The legislature has power to appropriate, by force of its own enactment, any flowing stream to the use of the public as a highway, provided suitable provisions are made to secure to private parties a just compensation for the individual rights which, by the appropriation, are divested, infringed upon, or impaired.
In 1872 the legislature passed an act (chapter 273, Laws of 1872), declaring Otter creek to be a public highway for the purpose of floating logs therein, and providing that the damages sustained by the riparian owners should be assessed by commissioners. The plaintiff claimed the act to be void, on the ground that he possessed the exclusive right to use a portion of the said creek flowing through lands of the defendant, for the purpose of floating logs, such light having been acquired from the defendant’s grantors, and that no provision was contained in the act to compensate him for the loss of such right. Held,, that the parties under whom the plaintiff claimed, had no right in the stream other than such as vested in them as riparian owners, and that as plaintiff had no greater rights than they had, he was the mere representative of such owners, and was embraced within the description of riparian owners used in the said act.
Appeal frota a j udgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
This action was brought for an injunction to restrain the defendant from driving logs in Otter creek, the plaintiff claiming that he had the exclusive right to use the creek for that purpose, such right having been acquired by him from the defendant’s grantors. In 1872 the legislature passed an act declaring Otter creek and its tributaries a public highway. (Chap. 273 of the Laws of 1872.) The defendant claimed that he was entitled to use the creek by virtue of the said act.
George W. Smith, for the appellant.
O. D. Adams, for the respondent.
This suit is instituted upon the claim of, and for the purpose of establishing in the plaintiff, an "exclusive right to use Otter creek for
p. 534
the purpose of transporting logs and lumber through a certain portion of said creek, including a portion'which runs through about 8,000 acres, lying on either side of the creek, and of which 8,000 acres the defendant is the owner. The plaintiff founds his claim upon the supposed grant from certain parties who formerly owned the land on both sides of the stream. The grant, however, upon which the plaintiff basis his claim, does not purport to convey any such exclusive right, or any right inconsistent with the rights of other owners of the lands bounding on the creek. The questions arising upon the construction of the plaintiff’s grant, and upon another paper which he claimed to be a license, we think, however, have ceased to be of any importance, as the legislature, by an act passed in April, 1812, have declared the said Otter creek and its tributaries in the counties of Léwis and Herkimer, to • be a public highway for the purpose of floating logs and lumber thereon, and made numerous and careful provisions for the regulation of the use of the stream as such public highway. That this act, if valid, vests the rights specified in the public, and supersedes any exclusive right in any one party, if any such had before existed, cannot be denied. There can be no doubt that the legislature has the power to appropriate, by force of its own enactment, any flowing stream to the use of the public as a highway, provided suitable provisions are contained in the act to secure to private parties a just compensation for the individual lights, which, by the appropriation, may have been divested, infringed upon, or impaired. The only objection suggested to the act in question, is, that the sole provision for compensation is for the payment of damages to riparian owners, and that the plaintiff claims rights, under his grant, more extensive than those that result to him from his riparian ownership of such portion of the lands owned by him, as border upon the creek. But the parties, under whose grant he claims, had no rights to the stream, other than such as vested in them under the rules of law as riparian owners. The right to the use of flowing water is “publioi juris,” and common to all riparian proprietors. It is a right to the flow and enjoyment of the water, subject to a similar right in all the proprietors.[1] The grantors of the plaintiff, whatever they may have assumed to do, could not grant to him any rights, except those
* Angell on Water Courses, § 95. .
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limited ones which vested in them as riparian owners, because they ■had no more extensive rights themselves. He is, therefore, in any point of view, the mere representative and grantee of the riparian owners, and as s.uch, we think, is embraced within the description of “riparian owners on said creek,” which is contained in the act, and it is to be liberally construed for the purpose of determining to whom the legislature designed compensation should be made. As to all rights to which the plaintiff at the time of the passage of the act of 1872, was lawfully entitled, beyond those which accrued to himself as a riparian owner, if any, we think he was entitled to receive a just compensation under the act, as the lawful representative in the premises of his grantors. The complaint of the plaintiff, that the commissioners appointed under the act, did not award him sufficient compensation, is not in any manner before us for consideration.
Judgment affirmed, with costs of appeal.
Present — Mullin, P. J., .Talcott and Smith, JJ.
Judgment affirmed, with costs.