Canal Appraisers v. People ex rel. Tibbets

1 Lock. Rev. Cas. 51

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: December 15, 1836
• Status: Published

Opinion

The Supreme Court holding that the relator was entitled to the south half of the middle sprout, the appraisers brought this writ of error.

In the course of the trial before the circuit judge, the acts of the legislature, (incorporated into the return, as it would appear,) granting a large number of islands, &c., were introduced in evidence, to show what the law of the state was} and that the legislature as evidenced by these private acts, had rejected or abrogated the common law rule with regard to riparian owners, &c. The Chancellor in his opinion, very justly, though severely, characterizes this mode of establishing the law of the land. He says—p. 602:

“ These acts of recent legislation are very little to be relied on to prove what our common law was one hundred and fifty years ago. Indeed the whole of these legislative acts and supposed conflicting grants, which were introduced into the return of the defendants below, merely by way of argument, or for the purpose of informing the Supreme Court what the law was, were improper as evidence for the consideration of the jury, as in civil cases the jury are to decide matters of fact merely, and the court is the proper-tribunal to settle the law.”—“ Indeed it would present a new and striking instance of the glorious uncertainty of the law, if the legal construction of all our titles to real estate was to be settled by the verdict of a jury, and upon such evidence of the law as has been produced by both parties in this case.”

As well for this reason, as others assigned by the Chancellor, he was for affirming the judgment of the Supreme Court. But aliter Dis visum; and the judgment of the Supreme Court was reversed.

The Senators who delivered opinions in favor of reversal were Beardsley and Tracy; and it is to be sincerely regretted, for the credit of our jurisprudence, that their unsatisfactory reasoning or apparent exercise of legislative power, to enact the law, should have prevailed over the sound reasoning and clear legal principles of the Chancellor’s .opinion.

Id3 The marginal note of the reporter in this case is as follows:

“ If in the improvement of the navigation of a public river, the waters of a tributary stream are so much raised as to destroy a valuable mill site situate thereon, and the stream be generally navigable, although not so at the particular locality of the mill site, the owner is not entitled to damages within the provisions of the canal laws directing compensation to be made for private property taken for public use.”

'iff See case of the Commissioners of Canal Fund v. Kempshall, where compensation was allowed for obstructing a race course in the Genesee river, at Rochester, and on writ of error to the Supreme Court, affirmed by the Court ■of Errors, 26 Wend. 404; also, Child v. Starr and others, 4 Hill 369. S. C. in S. Ct. 20 Wend. 149.