[365]*365By the Court,
Sutherland, J.
The first question to be .... , , . , , , considered is, whether the relator has shown a title to the middle sprout of the Mohawk river, and that involves the inquiry whether the middle sprout is embraced within the man- or of Rensselaer-wyck. The relator has exhibited a regular paper title under that patent to the middle sprout eo nomine. The description of that patent, as contained in what are called the letters patent of confirmation, dated the 20th May,1704, from the then colonial governor to Killian Van Rensselaer, as follows: “All that and those tract and tracts of land called Rensselaer-wyck, lying and being in and upon the banks of Hudson's river aforesaid, in the county of Albany,in the province of New York aforesaid, theretofore called and known by the name of the colony of Rensselaer-wyck, beginning at the south end or part of Berrien Island on Hudson river afore[366]*366sa^> ant^ «tending northward up along both sides of the said river, unto a place theretofore and yet called the Kahoos or Great Falls of the said river,and extending i tself east and west, all along from each side of said river, backwards into the woods twenty-four English miles; with all and singular the rights, members and appurtenances of said tract, &c. together with all and every the isles, islands, rivers, creeks, runs of water, mines, minerals, &c. to the said premises or any part thereof belonging or appertaining.”
When this cause was formerly before the court of errors, 5 Wendell, 423, various opinions were expressed by several members of that court as to the location of this patent. There was then no evidence in the case as to the location actually made, or as to any claim or acts of ownership under it by the patentee or his heirs or grantees. The question of location arose and was considered with reference to the terms of the patent alone.
The chancellor held that the patent included all the lands or islands in the Hudson river,as well as the 24 miles in width on each bank thereof,by force of the terms, Hying and being in and upon the banks of Hudson’s river” and that both sides of the river were referred to, {extending up along both sides of said river,fyc.) as forming a base from which the 24 miles were to be reckoned each way; but that the previous expressions showed that the colony of Rensselaer-wyck included the islands or lands lying and being in the river, as well as the lands on the banks thereof on each side. He remarked, page 451, that the lands lying under the waters of the river were not granted as such in express terms; and therefore, by the rules of the common law, that part which was actually covered by the tide waters did not pass by the grant; but that he was satisfied that all the islands, and the bed of the river above tide water, were actually covered by the patent to Van Rensselaer; and that therefore the legal title to the middle sprout of the Mohawk, which is a mile or two below the north bounds of the ■patent, if it had not been previously conveyed, passed to Tan Schoonhoven by the deed of 1792,and from him to the relator.
Mr. Senator Allen also thought the terms of the patent broad enough to cover the islands in the river; but, indepen[367]*367dently of that question, he was of opinion that it would cover the middle sprout, upon any principle of location which could. be applied to it. If the patent was to extend north on both sides of the Hudson, until it would strike an east and west line drawn from the Cahoes falls to the Hudson, then he observed that the rolling out or extension of the patent to the west would cover the middle sprout. If, however, the patent be extended north on both sides of the Hudson only, until it reaches the southerly end of Green Island, where the south branch of the Mohawk empties into the Hudson, and then, for the purpose of reaching the Cahoes, the northern termination of the patent, leaves the Hudson and runs up both sides of the south branch of the Mohawk to the falls, and then rolls out east and west, the extension to the east would cross the Hudson and cover the middle sprout.
Senators Beardsley and Benton, on the other hand, held that neither the bed of the river nor the islands in it were embraced within the terms of the patent, and seemed to think that, the patent must be located by running up on both sides of the Hudson, to the mouth of the south or west branch of the Mohawk, and then by following that branch to the Ca-hoes with one line, and keeping on the east side of the the Hudson with the other, toa point on the Hudson, whereaneast line from the Cahoes would intersect it; that rolling these lines back east and west, the tongue of land between them would not be included, nor of course the middle sprout; and as the east line, upon the principle oí usque ad Jilum aquae, would extend only to the middle of the Hudson, and the west line only to the centre of the west branch of the Mohawk, the patent on this ground could not cover the islands nor the middle sprout; and they accordingly came to the conclusion that the relator had failed to establish title to the premises, for an injury to which he claimed damages. The majority of the court concurred in that view of the case, and the judgment of the supreme court was reversed upon that ground, with leave to the relator to traverse the return, and establish his title upon a new trial if in his power.
When this cause was originally before the supreme court, it was not denied that the middle sprout was within the boun[368]*368¿[aries of the patent of Rensselaer-wyck. It was impliedly at least conceded that it was so. But the appraisers put their refusal to allow the relator any damages solely upon the ground that the middle sprout, or the land under it, did not, upon principles of law, pass to Yan Rensselaer, the patentee, although embraced within the external limits of the grant, but that it still belonged to the state. No question was made before us as to the construction or location of that patent. 6 Cowen 551, note. We have now, however, considerable evidence tending to show the actual practical location of the patent. The middle sprout, it will be recollected, lies between Yan Schaick Island on the north and Green Island on the south, extending from the west sprout of the Mohawk to the Hudson, between those two islands. It appears from the testimony given upon the trial, that Yan Schaick Island was granted by letters patent on the 13th October, 1665, to Philip Peterse Schuyler and Gosen Garretse, nearly 40 years before the confirmation of the patent of Rensselaer-wyck. It is described as situate, lying and being between the second and third spring, beyond and above the colony of Rensselaerwyck, near Albany; together with all woods, waters, lakes, creeks, rivers, fyc. to the said island belonging, with their and every of their appurtenances, &c. Green Island was granted by Killian Yan Rensselaer, the patentee, to Philip Schuyler in fee, on the 10th May, 1708, four years after the confirmation of the patent. The terms of this grant are not given in the case; but a regular deduction of title under it is shown down to March 1st, 1796, when the north half of the island was conveyed to the relator by Henry Oothout, the then proprietor.
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[365]*365By the Court,
Sutherland, J.
The first question to be .... , , . , , , considered is, whether the relator has shown a title to the middle sprout of the Mohawk river, and that involves the inquiry whether the middle sprout is embraced within the man- or of Rensselaer-wyck. The relator has exhibited a regular paper title under that patent to the middle sprout eo nomine. The description of that patent, as contained in what are called the letters patent of confirmation, dated the 20th May,1704, from the then colonial governor to Killian Van Rensselaer, as follows: “All that and those tract and tracts of land called Rensselaer-wyck, lying and being in and upon the banks of Hudson's river aforesaid, in the county of Albany,in the province of New York aforesaid, theretofore called and known by the name of the colony of Rensselaer-wyck, beginning at the south end or part of Berrien Island on Hudson river afore[366]*366sa^> ant^ «tending northward up along both sides of the said river, unto a place theretofore and yet called the Kahoos or Great Falls of the said river,and extending i tself east and west, all along from each side of said river, backwards into the woods twenty-four English miles; with all and singular the rights, members and appurtenances of said tract, &c. together with all and every the isles, islands, rivers, creeks, runs of water, mines, minerals, &c. to the said premises or any part thereof belonging or appertaining.”
When this cause was formerly before the court of errors, 5 Wendell, 423, various opinions were expressed by several members of that court as to the location of this patent. There was then no evidence in the case as to the location actually made, or as to any claim or acts of ownership under it by the patentee or his heirs or grantees. The question of location arose and was considered with reference to the terms of the patent alone.
The chancellor held that the patent included all the lands or islands in the Hudson river,as well as the 24 miles in width on each bank thereof,by force of the terms, Hying and being in and upon the banks of Hudson’s river” and that both sides of the river were referred to, {extending up along both sides of said river,fyc.) as forming a base from which the 24 miles were to be reckoned each way; but that the previous expressions showed that the colony of Rensselaer-wyck included the islands or lands lying and being in the river, as well as the lands on the banks thereof on each side. He remarked, page 451, that the lands lying under the waters of the river were not granted as such in express terms; and therefore, by the rules of the common law, that part which was actually covered by the tide waters did not pass by the grant; but that he was satisfied that all the islands, and the bed of the river above tide water, were actually covered by the patent to Van Rensselaer; and that therefore the legal title to the middle sprout of the Mohawk, which is a mile or two below the north bounds of the ■patent, if it had not been previously conveyed, passed to Tan Schoonhoven by the deed of 1792,and from him to the relator.
Mr. Senator Allen also thought the terms of the patent broad enough to cover the islands in the river; but, indepen[367]*367dently of that question, he was of opinion that it would cover the middle sprout, upon any principle of location which could. be applied to it. If the patent was to extend north on both sides of the Hudson, until it would strike an east and west line drawn from the Cahoes falls to the Hudson, then he observed that the rolling out or extension of the patent to the west would cover the middle sprout. If, however, the patent be extended north on both sides of the Hudson only, until it reaches the southerly end of Green Island, where the south branch of the Mohawk empties into the Hudson, and then, for the purpose of reaching the Cahoes, the northern termination of the patent, leaves the Hudson and runs up both sides of the south branch of the Mohawk to the falls, and then rolls out east and west, the extension to the east would cross the Hudson and cover the middle sprout.
Senators Beardsley and Benton, on the other hand, held that neither the bed of the river nor the islands in it were embraced within the terms of the patent, and seemed to think that, the patent must be located by running up on both sides of the Hudson, to the mouth of the south or west branch of the Mohawk, and then by following that branch to the Ca-hoes with one line, and keeping on the east side of the the Hudson with the other, toa point on the Hudson, whereaneast line from the Cahoes would intersect it; that rolling these lines back east and west, the tongue of land between them would not be included, nor of course the middle sprout; and as the east line, upon the principle oí usque ad Jilum aquae, would extend only to the middle of the Hudson, and the west line only to the centre of the west branch of the Mohawk, the patent on this ground could not cover the islands nor the middle sprout; and they accordingly came to the conclusion that the relator had failed to establish title to the premises, for an injury to which he claimed damages. The majority of the court concurred in that view of the case, and the judgment of the supreme court was reversed upon that ground, with leave to the relator to traverse the return, and establish his title upon a new trial if in his power.
When this cause was originally before the supreme court, it was not denied that the middle sprout was within the boun[368]*368¿[aries of the patent of Rensselaer-wyck. It was impliedly at least conceded that it was so. But the appraisers put their refusal to allow the relator any damages solely upon the ground that the middle sprout, or the land under it, did not, upon principles of law, pass to Yan Rensselaer, the patentee, although embraced within the external limits of the grant, but that it still belonged to the state. No question was made before us as to the construction or location of that patent. 6 Cowen 551, note. We have now, however, considerable evidence tending to show the actual practical location of the patent. The middle sprout, it will be recollected, lies between Yan Schaick Island on the north and Green Island on the south, extending from the west sprout of the Mohawk to the Hudson, between those two islands. It appears from the testimony given upon the trial, that Yan Schaick Island was granted by letters patent on the 13th October, 1665, to Philip Peterse Schuyler and Gosen Garretse, nearly 40 years before the confirmation of the patent of Rensselaer-wyck. It is described as situate, lying and being between the second and third spring, beyond and above the colony of Rensselaerwyck, near Albany; together with all woods, waters, lakes, creeks, rivers, fyc. to the said island belonging, with their and every of their appurtenances, &c. Green Island was granted by Killian Yan Rensselaer, the patentee, to Philip Schuyler in fee, on the 10th May, 1708, four years after the confirmation of the patent. The terms of this grant are not given in the case; but a regular deduction of title under it is shown down to March 1st, 1796, when the north half of the island was conveyed to the relator by Henry Oothout, the then proprietor. It is shown that neither the west nor the middle sprout of the Mohawk are navigable for any pxirposes in ordinary seasons, and that the fall in the middle sprout, before the erection of the state dam, was about 12 feet 10 inches, and that the tide never ebbed and flowed above the fall, nor in either of the other sprouts.
It was also shown and admitted that all the lands along the west sprout of the Mohawk, up to the Cahoes falls, were held under ancient leases in fee from the proprietor of the [369]*369manor of Rensselaer; and that there was a considerable manufacturing establishment on the western sprout, known by' the name of the Cahoes Manufacturing Company, who also derived their title to the land occupied by them, and the water of the river which was used in carrying on their work, from the proprietor of the manor. A lease was also produced and proved from Stephen Tan Ransselaer to Charles Haemstratt, bearing date September, 1794, granting him liberty to erect a grist-mill on the western sprout, and a sub-ply of water therefore for the term of twenty-one years. Abraham Tan Techten testified that the islands in the Hudson river, opposite to the farm of Thomas Hillhouse at the flats, and the large island below the city of Albany, called Martin Garretse’s island, were then, and had been as long as he could remember, held under the manor of Ranselaerwyck. A map of the manor of Renssalaer was also produced, in which was included and laid down as within the man- or, the west and middle sprouts of the Mohawk and Green Island, and on which the fall claimed by the relator was located, in the middle sprout. It was shown, on the part-of the defendants, that the patent of Halfmon was granted on the same day with the patent of Tan Schaick’s Island, and to the same patentees, and that both were confirmed to Anthony Tan Schaick on the 30th May, 1687. It was admitted, on the part of the relator, that the proprietor of the manor of Renssalaer had never claimed or had possession of any of the lands embraced in said patent; and it was proved, on the part of the defendants, that all the islands in the north sprout, north of Tan Schaick’s Island are held under Tan Schaick’s patent. For the purpose of showing a recognition on the part of the state, of the title of the proprietor of the manor of Rensselaer, to the western sprout of the Mohawk, the relator gave in evidence an act of the legislature of this state, passed the ,18th of March, 1828, authorizing the supreme court to appoint three appraisers to assess the damages which Joseph D. Selden might have sustained by means of the construction of the Champlain canal. His damages consisted in the destruction of a mill-sit and water privileges upon the west sprout [370]*370held under the manor title. His damages were shown to have been assessed at $6376, and to have been paid by the state.
This is the substance of the evidence in relation to the title of the relator to the middle sprout. It shows satisfactorily that Green Island and the other principal islands in the Hudson river were embraced within the original practical location of the manor of Rensselaer-wyck, and have been held under that title for more than a century. Whether that location was justified by the terms of the patent, it is at this day, and particularly in relation to this ease, of very little importance to consider. It is sufficient to say that that construction of the patent is at least as plausible, with reference to its terms merely, as that contended for by the defendants, and which would exclude from the patent the islands in the Hudson. Green Island, then, must be considered, for the purposes of this case, as belonging to the manor of Ransselaer-wyek, and as having passed, with all its common law appurtenances, to Peter Schuyler, under the conveyance from Killian Van Rensselaer of the 10th of May, 1708 ; and the north half of the island, bounded upon the middle sprout, is shown to have vested in the relator and his brother as early as March, 1796, through a regular deduction of tittle from Schuyler through the family of Oothouts.
The facts, then, upon which the relator’s title to the mid-, die sprout depends are these : The middle sprout is a branch of the Mohawk river, in which, above the falls, the tide never ebbs or flows, and which never has been used, and is incapable of being used for any species of navigation. The relator owns the north half of Green Island, which is bounded on the north by the middle sprout. Van Schaick Island lies upon the opposite side of this stream, and is bounded by it on the south. The relator neither claims nor shows any title to this island; it is held under a patent older than the patent of the' manor of Rensselaer-wyck. Upon the acknowledged principles of the common law, the proprietors of these-islands own respectively to the centre of the stream; for nothing is better settled than that grants of land, bounded upon rivers or streams where the tide does not ebb or flow, carry the exclusive right of the grantees to the middle of the stream, unless [371]*371the language of the grant is such as clearly and unequivocally to show the intent of the parties that it should not extend beyond the water’s edge. Where the stream is navigable for either boats or rafts, the public have a right to use it for those purposes, and the rights of the adjoining proprietors aresubject to the public easement. They can use the water, or the land under the water, in any manner which does not impair its use as a public highway; but they cannot erect dams, or place other obstructions in the stream, which will interfere with its free and convenient use for public purposes. Nor can the state divert the water of the stream, or interfere with it in any other manner which will render it less useful to the proprietors of the adjacent shores. This doctrine is perfectly settled in England, and has been repeatedly acknowledged and applied in this court and in the court of several of our sister states. The English and American authorities are all referred to in the learned and elaborate noteof the reporter, in Ex parte Jennings, 6 Cowen, 548, et seq., and in 3 Kent's Comm. 427, 428, 429,430,2d ed. Hale's de Jure Maris, ch. 4, 5. Dougl. 425. Palmer v. Mulligan, 3 Caines' R. 318. Shaw v. Crawford, 10 Johns. R. 236. The people v. Platt, 17 id. 195. Hooker v. Cummings, 20 id. 90. Ex parte Jennings, 6 Cowen,518. This principle has been recognized and adopted not only in this state, but also in Maine, New-Hampshire, Massachusetts, Connecticut, New-Jersey, Maryland, Ohio and Virginia. 3 Greenl. R. 269, 474. 2 N. Hamp. R. 369. 7 Mass. R. 496. 14 id. 149. 4 Pick. R. 268. 2 Conn. R. 481. 6 id. 471. 1 Halst. 1. 1 Rand. 417. 3 id. 33. 3 Ohio R. 495. 5 Harr. & John. R. 195. It is not my intention to enter into a discussion of the question whether this principle of the common law is suited to the nature and extent of our inland streams. That is no longer an open question in this court, in relation to streams of the character and description of the middle sprout. The principle has been applied in the various cases above referred to, and its wisdom and applicability to our condition are there satisfactorily maintained.
Cases may arise in which the application of this principle ■ will be found to interfere with either general or special acts of the legislature. A number of instances were referred to up[372]*372on the argument, and are mentioned in the testimony of the o' j surveyor general, given upon the trial, in which the islands in the Hudson and Mohawk, and various other streams where the dde does not- ebb and flow, have been specifically granted by the legislature, separate and distinct from the land on their respective banks. It was contended that these grants afforded satisfactory evidence that the principle of the common law which we are now considering had never been adopted in this state. With respect to most of those cases, it may be said, that the terms'of the grants, both of the islands and the main land, ■and their respective dates, and the circumstances and representations under which they were obtained, are not sufficiently disclosed to enable us to form any definite opinion as to their legal effect and bearing. The riparian owners may have limited themselves by practical location to the margin of the stream, when the terms of their patent would have carried them usque ad medium filam aquce, or the terms themselves may have been such as to exclude the stream. In some of the instances specified in the case, however, it must be conceded that the legislature appear to have overlooked or disregarded this principle of the common law. But the evidence is insufficient, in my judgment, to justify the conclusion that the principle never was adopted in the colony or state, or having been adopted, that it was ever legally abrogated or ex-' ploded. If controversies shall arise under these conflicting grants, they must be disposed of according to the circumstances of each particular case.
If the relator is the owner of one half of the bed of the middle sprout and of the fall, and his beneficial enjoyment of it has been impaired or destroyed by the erection of the state dam, his title to damages appears to me to be as perfect, both upon general principles and under the special acts applicable to these cases, as though the injury had consisted in the overflowing or destruction of Green Island itself. When private property ■of any description is destroyed, and its beneficial enjoyment is essentially impaired in the prosecution of the public works, it is taken for public use, within the meaning and spirit both of the constitution and the canal laws, and the owner is entitled to just compensation. The state has no more right, by [373]*373an artificial erection like the state dam, to overflow and destroy a valuable water fall in a tributary stream, without paying for it, than it has to overflow and destroy a valuable farm upon the adjacent shore. In principle, they stand upon the same ground. The case Ex parte Jennings is decisive upon this point.
I have considered the title of the relator to the middle sprout as derived solely from his deed for the north half of Green'Island, which carried him to the middle of the stream; and I have not supposed his title at all strengthened or enlarged by the conveyances from Van Schoonhoven to him for the whole of the stream and the land under it. Van Schoonhoven derived his title under a quit claim deed from the present proprietor of the manor, dated the 5th of May, 1792; and in September, 1795, he conveyed the middle sprout to the relator. There is no evidence in the case of any actual appropriation of the stream, or any portion of it, or any other act of ownership over it, by the relator or any other person. His rights, therefore, depend entirely upon the legal effect of the paper title exhibited in the case ; and it has already been shown that the proprietor of the manor of Rensselaer-wyck acquired under his patent a title to but one half of the middle sprout, which passed to Peter Schuyler, under the conveyance of Green Island of the 10th May, 1708, from Killian Van Rensselaer. The north half of the sprout had previously vested in the Van Schaicks, under the patent for Van Schaick Island, and for aught that appears in the case, is still appurtenant to that estate. Van Schoonhoven then acquired no interest in the middle sprout, under his deed from the patroon of May, 1792, and of course conveyed none to the relator in September, 1795.
The relator’s title, therefore, extends only to the south half of the middle sprout and the fall, and to that extent he is entitled to have his damages assessed.
Judgment accordingly.