Landon, J.:
The learned trial court, in directing a verdict in favor of. the plaintiff for. six cents, 'in effect found the fact to be that the defendants had deposited the material which they dredged from the river channel in such places in the river as to impair the usual facilities of access to his uplands, and to trespass upon or injure his two-acre tract .under water which he held by grant from the State. But the most important of plaintiff’s claims for damages were for injury to his alleged exclusive fight of fishery and.of gathering ice opposite his uplands. The court held that he had no such rights except as to the two-acre tract under water. The plaintiff gave no evidence by which to measure his damages as to the two acres under water, exclusive of his alleged fishing and ice-gathering rights along the other portion of his water front. This appeal requires us to determine whether he has any such rights, and if so, what is their character, and by what tenure does he hold them.
First, as to his claim of the exclusive right to take fish from the river immediately in front of his upland, a right technically termed. a several fishery. The evidence is to the effect that this part of the river had been from time immemorial, until the alleged acts of the defendant, a productive and .profitable fishing field. The plaintiff, claims title by grant to the exclusive right of fishing therein. He deduces his title from An dries Pieters Coeymans, to whom the Gov[219]*219ernor-General of the Province of New York in 1714 made a grant confirming an earlier Indian grant made to Andries’ father, Parent Pieters Coeymans, prior to 1673, and in that year confirmed to Barent by grant of the Governor-General. The tract as first granted, or a part of it, apparently embraced part of the manor of Rensselaerwyck, and its boundaries were vaguely defined. It appears from the recitals in the confirmatory deed of 1714 that Barent and his son, Andries, in 1706 and Killian Van Rensselaer, proprietor of the manor, amicably adjusted the boundaries between their respective lands, and that Van Rensselaer released to them all his right, title and privileges in and to the land, south of the manor boundary as adjusted, describing it as a “ parcel of land situate on the west side of Hudsons river * * * beginning on the bank or shore of the said river * * * and to extend from the said river into the woods ” and by various courses until the boundary comes back “ to the river.” This includes no part of the bed of the river. But these words follow this description “ Together with all and singular * * * waters, water courses, fishings * * * easements, * * * hereditaments and appurtenances whatsoever to the said tract * * * or to any part * * * thereof belonging or in any ways appertaining.” Whether the release thus recited did any more than mark the true boundaries is not clear. The confirmatory deed of 1714, after making the foregoing recital, confirms the title in Andries, son and heir of Barent, describing the land as “ Beginning at a certain creek called Peter Bronks creek, "* * * including the same creek on the west side of Hudson’s river, thence up along the said river as it runs to a brook * * * thence from the said river backwards up into the woods west * * * being the northern bounds of said land and the southern bounds beginning at the mouth of the said Peter Bronkx, his creek,” and running back into the woods the same distance. The western extremities of the northerly and southerly bounds are then connected by the westerly boundary; “ the easterly bounds thereof is the said Hudson’s river.” This description includes no part of the river. (People v. Page, 39 App. Div. 110.) Following the description are the words, “ together with all and singular * * * ponds, pools, waters, watercourses, and streams of water, fishing * * * within the limits and bounds aforesaid.” (See Sage v. [220]*220Mayor, 154 N. Y. 61, 69.) It will be seen that where Peter Bronk’s creek is mentioned as a bdundai'y the words follow, “ including the same creek.” This deed by its terms does not include any exclusive grant of fishing in the river, but rather refers to the fishing in the creeks and other waters “ within the limits and bounds aforesaid,” that is, of the grant.,
The right of fishery, in navigable or tide waters, says Kent (3 Kent’s Com. 418), stating what seems to have been the law always, is a common right; and if one or more individuals set up an exclusive right to a free or several fishery, it must be clearly shown by prescription or positive grant. Our courts have upheld the grants by the crown of land under water together with the right of exclusive fishing therein; that is, within the limits of the land granted. (Rogers v. Jones, 1 Wend. 237; Trustees of Brookhaven v. Strong, 60 N. Y. 72; Hand v. Newton, 92 id. 89; Robins V. Ackerly, 91 id. 98; People v. Lowndes, 130 id. 455.) In fresh water streams, unnavigable except for small craft, like the Salmon river, in Hooker v. Cummings (20 Johns. 90), where each riparian proprietor owns to the center of the stream and not merely to high-water mark, as in the case of the Hudson river (Smith v. City of Rochester, 92 N. Y. 465; Wheeler v. Spinola, 54 id. 377; Roberts v. Baumgarten, 110 id. 380; Sage v. Mayor, 154 id. 61), such, proprietor has prima facie the exclusive right of fishing in his own part thereof, subject to the public use of the stream as. a highway if it be fit for such use. The plaintiff has the exclusive right to stand on his own soil and cast his lines or nets into the river, just as he has the exclusive right to stand there and shoot at the wild ' ducks which alight in the river within gunshot range of his land, but he has no more right to the fish than he has to the- ducks until he captures them. And he has no cause of action against whoever scares the fish or fowl away. A distinction exists in respect to oysters which one plants in a marked-off bed in such a way as not to interfere with navigation or public fishing; the oyster is thus captured and subjected to private ownership. (Fleet v. Hegeman, 14 Wend. 42.) Public grants of public privileges must be construed most strongly against the grantee. (People v. N. Y. & Staten I. Ferry Co., 68 N. Y. 71.) We do not think this grant conveyed any exclusive right of fishery in the river to the grantee.
[221]*221Second. The plaintiff _ contends that the evidence adduced by him for the purpose of showing that he and his grantors had acquired by prescription the exclusive right of fishing immediately in front of his premises, should have been submitted to the jury. We think not. That a prescriptive right to a several fishery can be acquired in navigable waters is recognized in the cases cited, although not necessary to the decision therein made. Those cases rested upon actual grants.
In Jacobson v. Fountain (2 Johns. 170) the right by prescription was sustained, the plaintiff proving sole and exclusive possession for many years, and also that two of the defendants had recognized his. title by paying him for the privilege of fishing. In Gould v. James (6 Cow. 369) the court said every presumption of a prescriptive right is against the plaintiff. In Trustees of Brookhaven v. Strong (supra) the court said, after expressing some doubt whether the king could grant the exclusive right of fishery in navigable streams, and commenting upon the evidence tending to show that the right of the plaintiff had long been disputed, “ that in all cases of contest the right of the town was maintained, and has been continuously exercised in various ways, by exacting payment for individual privileges, or by leasing the land, or otherwise. * * * This long user and occupancy, though probably not a technical bar under the Statute of Limitations, on account of the nature of the property and the necessarily imperfect character of the possession, are sufficient to give the plaintiffs the benefit of any presumption which may be legitimately indulged to supply defects, if not a title by prescription.” The Brookhaven case seems to have been disposed of on the theory that even if the king had no right to grant the exclusive privilege of fishing in navigable waters, yet since he had exercised the right in that case, and the right had long been maintained and enjoyed, and had been sustained in Rogers v. Jones (supra), and the question had practically ceased to be important, it was better to uphold than to overthrow the alleged-right. It is at once perceived that the acquisition of the right by prescription, which presumes some ancient and lost grant, must be difficult to establish. All the - more difficult here, because we have the original grant to Andries Pieters Coeymans, from whom the plaintiff traces his title, which does not confer the right. Having an ancient title which does not [222]*222aid him, can we suppose one less ancient and lost, which does aid him? Clearly, as quoted above, every presumption is against him. If the crown in colonial times could make a grant, of a several fishery in navigable waters, such grant, when made, became validated by the State Constitution. (Art. 1, § 17; Trustees of Brookhaven v. Strong, supra.) As title by prescription presumes a grant, the prescription necessary to establish such presumption against the crown must have been made while the power of the crown to make the grant was in force. It ceased to exist according to section 17, article 1 of the State Constitution, October 14, 1775. The State of New York succeeded to the title of'the crown and to its powers, except as limited by its Constitution or laws (Langdon v. Mayor of N. Y., 93 N. Y. 129; People, v. N. Y. & S. I. F. Co., 68 id. 71), but it couid not make a grant of lands or of anything issuing out of lands except in pursuance of law. We have a statute for the propagation and protection of fish in the various waters of the State, and the regulation of fishing. (The Fisheries, Game and Forest Law, chap. 488, Laws of 1892.) The statute proceeds upon the theory that, except as regulated, fishing is free to all who can go a fishing, without trespassing upon private lands, except that, as to shell fish, private ownership in public waters may exist, and the State may lease privileges. (See People v. Doxtater, 75 Hun, 473; affd., 147 N. Y. 723.) Except as to shell fish, there does not appear to be any statute authorizing the lease or grant of the privilege, of fishing in the navigable waters of the State.
It follows that what the State is not authorized to grant, cannot be presumed by any exclusive use to have been granted, by -the State. (Knickerbocker lce Co. v. Shultz, 116 N. Y. 382; Burbank v. Fay, 65 id. 57.) As intimated in Trustees of Brookhaven v. Strong, the nature of the plaintiff’s claim to an' exclusive right of fishery in the Hudson river opposite his uplands is not such as to constitute an adverse possession within the -Code of Civil Procedure. (§§ 362-372.) The maxim miMurn tempus ooeurrit regi is not here abridged by the provisions of the Code, and it seems peculiarly appropriate to the circumstances. The plaintiff’s claim is.not to the land, but to what may come because of the land, an incorporeal' hereditament, which Blackstóne elassifies as a franchise. (2 Black. [223]*223Com. 39.) It manifestly is a franchise if it is a private exclusive monopoly of a public right. It is an easement if it is the servitude which the servient tenement, the river, must yield to the dominant tenement, the upland. Under our State Constitution, it is doubtful whether any franchise can be granted except to promote the public welfare. (Art. 3, § 18.) To grant to one person the exclusive right of fishing in any part of the Hudson river would be to deprive, without due process of law, every other person of his privilege of fishing there. The nature of the title of the State to the river does not admit of its subjection to a perpetual unconditional easement in favor of the upland.
But starting with the presumption that the right of fishing in the navigable part of the river is common to all, then the plaintiff is met with the difficulty that every time he and his grantors fished in these waters, they simply exercised a right common to all and in subordination to the legal title of the State (Code, § 368); that every time any one else fished therein, he did so of like common right. If the plaintiff excluded any fisherman from these waters, that might be notice to such fisherman, but it would not be notice to the State. The State should not be presumed to have lost its title unless the circumstances charged it with notice of the necessity of protecting it. As it is said in Sage v. Mayor (154 N. Y. 79): “ Although, as against individuals or the unorganized public, riparian owners have special rights to the tideway that are recognized and protected by law, as against the general public, as organized and represented by government, they have no rights that do not yield to commercial necessities, except the right of pre-emption, when conferred by statute, and the right to wharfage, when protected by a grant and covenant on.the part of the State.” The plaintiff’s evidence of his exclusive user of these waters for fishing was to the effect that he and his grantors and those whom he or they permitted were in the main the only persons who fished there; that occasionally others would attempt to fish there, but did not in fact do any fishing when plaintiff’s ór his grantor’s nets were out. Once liis grantor sued a person because he fished there; what became of the suit does not appear. The plaintiff once forbade one Lynch from depositing dredged material there and he desisted. Fifty years ago plaintiff’s grantor ordered a fishing party away and [224]*224they left. This and other evidence tended to show that the plaintiff and his grantors- for fifty years- claimed the exclusive right of fishing in these waters, and that in the main'his neighbors respected the claim. We do not think these facts affect the State. Every act shown asserting the right of exclusive fishing was as “ unstable as water,” and left no mark to warn the State of the plaintiffs claim. (Knickerbocker Ice Co. v. Shultz, 41 Hun, 458; affd., 116 N. Y. 382.) The plaintiff being destitute of any title to the fishery, has no better right than any other citizen to recover damages for its injury; that is, no right at all.
Third. As to the plaintiff’s right to take ice. The owners of the waters of a mill pond own the ice formed upon it. The owner of the bed of a stream owns the ice within it. (Myer v. Whitaker, 55 How. Pr. 376; Swan v. Goff, 39 App. Div. 95.) The State owns the Hudson river in trust for the use of the public. Apart from the statute about to be considered, the ice formed upon it, like the fish within it, becomes the property of the captor who first peacefully seizes it. Chapter 388, Laws of 1879, provides, the “ owners or occupants of lands and icehouses” on the Hudson river have the exclusive right of gathering ice formed on the river adjacent to the lands and icehouses so owned or occupied by them, after certain acts of appropriation are performed, such as staking Out the ice field to be harvested. This is a regulation by the State in favor of the riparian proprietor or occupant, no doubt including the lessee of the owner, as the act amended by chapter 9.53, Laws of 1895, now provides, conferring upon him the exclusive right to harvest the ice in front of his premises, provided he has an icehouse thereon and gives suitable evidence of his design to gather the ice. Such riparian proprietor or occupant or lessee has the preference; if he cannot or does not exercise it, then he should not prevent others from taking the ice.
If what we have already said is correct, this act rightly assumes the title of the State to the ice and is intended as an equitable regulation for its appropriation, and also as a police regulation to prevent the breach of the peace liable to occur from private struggles to- capture the ice, and thus, so far as it gives to one a privilege which it withholds from another, it does so to promote the public welfare. If it cannot stand upon this ground, it is difficult to see [225]*225how it can stand at all. No doubt it confers a valuable privilege upon the riparian proprietor, and runs with his land to his lessee. Butin 1894, when the defendant committed the acts complained of, the plaintiff had no icehouse, and, therefore, he had no existing ice privileges, but had the privilege of acquiring them thereafter. If the defendant wrongfully impaired the latter privilege, we think he would be liable therefor.' But we have no evidence to enable us to fix the measure of such impairment. The complaint is in tort and asks for damages, and, therefore, concedes that there is an adequate remedy at law, and thus limits the plaintiff’s damages to those which accrued prior to the commencement of the action. (Uline v. N. Y. Central & H. R. R. R. Co., 101 N. Y. 98.) When, therefore, the trial court directed a verdict for nominal damages, it did so because the amount was not shown in respect to the items for which damages weré recoverable. And for this reason the court properly excluded testimony offered by plaintiff tending to show in bulk damages for both items, the recoverable and the non-recoverable.
Fourth. As to the plaintiff’s claim for other damages. The trial court in directing a verdict said that the government has a right to fill up the water adjoining the plaintiff’s land, but not without making just compensation for the damages .thereby done to it, such as the right of access and the filling up of his two acres under water, and the injury to plaintiff’s fishing rights upon said two acres, but in the absence of evidence by which to measure such damages the court was obliged to limit them to six cents. Just compensation was what the plaintiff sought, and under the ruling of the court that he recovered, to the extent of his proof of it. No case was made for punitive damages. (Millard v. Brown, 35 N. Y. 297.)
Fifth. We propose, however, to examine the question whether the acts of the defendant were done under the authority of the United States, and, if so, whether the plaintiff has the right to recover for the consequential damages resulting. Whether or not it was shown that the improvement of the channel was done by the United States, it was shown that up to 1887 the improvement was carried on by the State and that after that the Federal government began .repairs to the dykes, and later on began the dredging of the river. The plaintiff proved by the United States engineer in charge at the [226]*226time of the trial, October, 1898, that from 1892 to June, 1898, Edwards, Hewlett & Thompson were the contractors under the United States for dredging the river between Coxsaekie and the State dam at Troy, embracing the locus in quo. Under the War Department and chief engineer, pursuant to an act of Congress, hereafter cited, making an appropriation for' that purpose, Edwards, Hewlett & Thompson sub contracted the work to the defendant. The bulkhead which extended from about the middle of the plaintiffs front to the westerly dyke of the channel was placed .there by the United States in 1889. This bulkhead was known as “ Mull’s stone dyke.” Its purpose was to prevent the. dredged material deposited above it from washing down stream and thence into the channel below. Chapter 158, United States Statutes, 1892 (27 U. S. .Stat. at Large, 97),. contains, among other appropriations for the construction, repair and preservation of rivers and harbors, the following : “ Improving Hudson River, New York, by extension of project of improvement adopted in eighteen hundred and sixty-seven, so as to provide for a channel twelve feet deep and four hundred feet wide, from Coxsaekie to the foot of Broadway, Troy, * * * one hundred and eighty-seven thousand, five hundred dollars. Provided that contracts may be entered into by the Secretary of War for such materials and work as may be necessary to carry out the plan recommended by Board of Engineers, United States Army, dated October first, eighteen hundred and ninety-one, and printed in House Executive Document Numbered twenty-three, fifty-second Congress, first Session, for the Improvement of the Hudson River, &s above stated, to be paid for as appropriations may from time to time be made by law¿ not to exceed in the aggregate two million, two hundred and sixty thousand, four hundred and six dollars, exclusive of the amount herein and heretofore appropriated.”
. The respondents had no contract with the United States, but had a contract with'the defendants Edwards, Hewlett & Thompson, made January 28,1893, wherein it is recited that, Edwards, Hewlett & Thompson had theretofore submitted proposals for the execution of certain work for the improvement of the navigation of the Hudson river under the direction of the Secretary of War of the United States, which proposals were accepted and a contract duly made in [227]*227accordance therewith December 23, 1893, and that the respondents assumed and agreed to discharge and perform every obligation and part thereof undertaken by said Edwards, Hewlett & Thompson. In July, 1893, Edwards, Howlett & Thompson, referring to “our contract with the United States government for the Hudson river improvement,” requested in writing of the engineer in charge under the United States of the Hudson river improvement, permission to deposit material dredged from the channel of the river above Mull’s stone dyke between the channel dyke and the west shore of the river. This request was made in behalf of the respondents. The engineer answered : “ This office offers no objection to the proposed disposition of the. material, it being understood, however, that the material will be placed behind secure bulkheads, .where it cannot be washed back into the channel by current •or freshet action.”
Chapter 907, United States Statutes, 1890 (26 U. S. Stat. at Large, 453), forbids any casting of earth or dredged material into any navigable river “ which shall tend to impede or obstruct navigation,” or in any place “ whereby navigation shall or may be impeded or obstructed,” provided that when done for the improvement of navigable waters it is not unlawful to cast it “ into such places and in such manner as may be deemed by the United States officer supervising said improvement most judicious and practicable .and for the best interests of such improvements.” Thus the law is that the dredged material be cast into a navigable river so as not to impede or obstruct navigation, but that if it shall actually be otherwise cast, pursuant to the direction of the supervising officer in charge, it shall not be Unlawful. That is, an error of judgment may happen.
There is no evidence to the effect that the deposit of the dredged material in question did in fact obstruct or impede navigation, and, therefore, there was no need to show that the officer in charge -deemed this place of deposit the “ most judicious and. practicable and for the best interests of such improvements.”
From these facts it cannot be doubted that the improvement was made under contract with the United States government. (Wisconsin v. Duluth, 96 U. S. 379.) The plaintiff, however, urges that, assuming this to be so, the defendant had no right to deposit [228]*228the dredged material where it did, and thereby injure the plaintiffs riparian and water rights. Reither the United States nor the defendant under it could invade plaintiff’s upland without making just compensation. But the plaintiff’s rights and property in the-' bed of the river, including his land under water, rest upon such title as the State could give him, and this is different from his title to his upland. The State holds the title to- the river and its bed as-trustee for the public, but as the river is a national highway (Gibbons v. Ogden, 9 Wheat. 1), the State holds such title subject to-the paramount power of Congress to regulate commerce with foreign nations and among the States, and thus, as a part of that power,, to improve the navigation of the river. (Wisconsin v. Duluth, supra; Benner v. Atlantic Dredging Co., 134 N. Y. 156.) This-power embraces every necessary and proper power incidental to its-completeness. The excavation of the channel is a necessary and. proper part of the improvement. But it has the same power to fill up some portions of the river bed as to dredge out others, since one-act may not only be the necessary incident of the other, but necessary and proper to its efficiency. (South Carolina v. Georgia, 93 U. S. 4.) The power being complete, of course neither the State, nor the plaintiff holding under the State, can call the United States to account for the manner of its exercise, unless it invades some right or property of either not subject to the power. There are many cases touching the riparian rights of individuals upon inteistate navigable waters under grants from the State not involving .the Federal power, and they usually declare such rights, with the reservation that they are subject to the exercise of the Federal power. (Sage v. Mayor, 154 N. Y. 61; Saunders v. N. Y. Central & H. R. R. R. Co., 144 id. 75; Rumsey v. N. Y. & N. England R. R. Co., 133 id. 79; People v. N. Y. & Staten I. Ferry Co., 68 id. 71; Illinois Central R. R. Co. v. Illinois, 146 U. S. 387; Shively v. Bowlby, 152 id. 1, 47.) .
Where they do not- make the reservation,- it must, nevertheless, be understood. The United States, in making -this improvement, has not trenched upon the plaintiff’s upland. He does not complain of a trespass upon it, but simply of such consequential injuries to his alleged rights in the river, adjoining it as the improvement of navigation has caused. He holds his land under water in [229]*229the bed of the river, and his right to the use of the river for whatever purpose he may desire, by a title which subjects them to such consequences. This must be so; otherwise his private rights to the use of this natural public highway of commerce would be superior to the right of the United States, the sovereign controller of that highway in the interest of all the people, to improve it, except upon paying him for the privilege. From the nature of the case, the trustee of the public rights, whether the State or the Nation, could grant him no such rights, except for the public use. If the plaintiff had made any erections in or over the river upon the authority.of the State with the consent of the United States, for the public benefit, he would be entitled to compensation for their taking or injury (Monongahela Navigation Co. v. U. S., 148 U. S. 312); but without such authority to stand upon, he would have no such right. (Bridge Co. v. United States, 105 U. S. 470.) But the plaintiff has made no permanent improvements. He still retains his property; its usefulness to him is somewhat impaired by the intervention always reserved, of. the paramount public power exercised in the public interests.
•In Sage v. Mayor (154 N. Y. 79) the court, in speaking of the riparian rights of the upland owner as against the city and State ■of New York, said: “ In every grant of lands bounded by navigable waters where the tide ebbs and flows, made by the Crown or the State as trustee for the public, there is reserved by implication the right to so improve the water front as to aid navigation for the benefit of the general public, without compensation to the riparian owner.” When we come to the right of the United States to improve navigation in such waters without making compensation to the riparian proprietor, we do not have to resort to implication. The right to do so flows from the full power conferred upon Congress to regulate commerce among the States. It would be less than full if the plaintiff had absolute rights in commercial waters.
The judgment is affirmed, with costs.
All concurred, Merwin, J., in result.
Judgment affirmed, with costs.
As to the plaintiff’s right to costs below. The trial court certified that title to real estate came in question upon the trial, and [230]*230thereupon, after hearing counsel for both parties, directed that judgment be entered accordingly. The defendant' appeals from this portion of the judgment.
■The plaintiff recovered six cents. What for \ For trespass upon his land under water .and for' impairmeht of' his navigable-access to his uplands. The defendant’s appeal as to costs assumes the recovery of damages to be right. As to the plaintiff’s right of access, the question in dispute was not as to the ownership of the-upland, but whether the plaintiff had the easement of right of way ■to and from it by water. That is, whether this easement was appurtenant to his land. The court decided this issue in favor of' the plaintiff. Such an easement embraces the idea of a. dominant- and servient tenement; that is, there' appertains to the plaintiff’s land a right ■ in the State’s land. This right is usually called an incorporeal hereditament because it is inheritable, but not tangible is not a part of the adjacent land, but .a right to use it for a particular purpose useful to the plaintiff’s land. It passes by deed, and is classified as real estate. (3 Kent’s Com. 401, 419, 427; Jones, v.. Met. El. R. Co., 39 N. Y. St. Repr. 177; Saunders v. N. Y.. Central & H. R. R. R. Co., 144 N. Y. 75, 87.)
The plaintiff also alleged that he owned certain land under water.. He did own two acres. His ownership was not practically disputed,, but the question was whether it was absolute ownership or such qualified ownership as precluded him from complaining if the government deposited dredged material on the two acres. If the former, he had full title if the latter, something less than full title. The real issue then was as to his title. The defendant claimed that-so much title resided out of the plaintiff as permitted the acts complained of. Hence some title to real estate was in question within, section 3228, Code of Civil Procedure.
The order as to costs should be affirmed, with, ten dollars costs.
All concurred.
Order affirmed, with ten dollars costs and disbursements.