H. T. Kellogg, J.:
The claimant, prior to the year 1910, was the owner of both banks of the Hudson river at Van Schoenhoven rapids. These rapids were a short distance above Waterford, and were the first rapids in the Hudson river above the confluence of the Hudson and the Mohawk. There was here a natural drop of nine feet, distributed through a. distance of one-half mile. About four miles above there was a water power belonging to the Hudson River Power Transmission Company. The Van Schoenhoven rapids were susceptible of development to constitute a valuable water privilege. A dam erected at Split Rock would have furnished a head of thirteen feet. By means of such a dam 5,000 horse power on the average could be developed. Such a dam would not have minimized the water privilege of the Hudson River Power Transmission Company, or set back the waters to overflow lands other [275]*275than those owned or controlled by the claimant. These lands reached upstream for about two miles, and had an acreage of 163.68. The canalization of the Hudson river from Waterford to Fort Edward, as prescribed by chapter 147 of the Laws of 1903, necessitated the erection by the State of New York of a dam at Van Schoenhoven rapids, in order that the waters above might have a depth sufficient for the passage of boats with a draft of not more than twelve feet. In the years from 1910 to 1913 the State appropriated all the lands and rights of the claimant at Van Schoenhoven rapids. It erected a dam at Split Rock and constructed a canal and lock to enable vessels to pass the dam. These structures were in part built to the west of the western boundary line of the Hudson river on lands previously owned by the claimant. The waters of the river, drawn from the pond created by the dam, are now utilized to fill the canal and lock thus built, and to operate the lock. Through this development the waters of the Hudson river are diverted to flow in an artificial channel outside the natural river channel for a distance of about 5,000 feet. The claimant filed its claim for damages on account of the appropriations made. It claimed the right to recover not merely the value of its uplands, but as well the value of the water power at Van Schoenhoven rapids. The Court of Claims found that the claimant was so entitled, and determined the value of its properties and rights to be $250,000. It allowed to claimant the amount named together with interest from June 30, 1913. The State appeals asserting that the claimant’s right of recovery should be limited to the value of its uplands. The claimant appeals, asserting that it is entitled to interest upon the principal sum awarded from March 17, 1910, rather than from June 30, 1913.
In the early cases in this State, as well as in other jurisdictions, the statement was frequently made that under the common law of England non-tidal rivers were not navigable. The statement first appeared in an opinion by Chancellor Kent in Palmer v. Mulligan (3 Caines, 307). “ Chancellor Kent originated a theory that at common law only tidal streams were navigable.” (Farnam Waters, § 23a.) The theory thus advanced was adopted by Angelí in his book on Water Courses (6th ed. § 542), and thereby gained general currency. (Id.) This doctrine was reasserted by many judges in this State, notably, by Vice-Chancellor Gridley in Varick v. Smith (9 Paige, 547); by Mr. Justice Bronson in Starr v. Child (20 Wend. 149); by Senator Beardsley in Canal Appraisers v. People (17 id. 571); by Judge Smith in Morgan v. King (35 N. Y. 454); and by Judge Gray in Fulton Light, H. & P. Co. v. State of New York (200 id. 400). The correctness of the doctrine was doubted by [276]*276Davies, J., in People ex rel. Loomis v. Canal Appraisers (33 N. Y. 461), and by Huger, Ch. J., in Smith v. City of Rochester (92 id: 463). Modern opinion declares that under the English common law non-tidal rivers, navigable in fact, were likewise navigable in law. (Farnam Waters, § 23; 42 L. R. A. 305, see note at p. 316.) Farnam says: “ The rule that navigable water is not synonymous with or limited to tidal water dates back in England to the very earliest reports on record.” Citing many English authorities he states the common-law rule to be, and always to have been, as follows: “ A stream is navigable in fact and in law when it is capable in its natural and ordinary volume of water of transporting in a marketable condition the products of the contiguous country.” (§ 23e.) The L. R. A. note states: “ The courts have generally adopted the rule which is alike that of the common and of the civil law, that navigability in fact is navigability in law. This has generally been in the face of Chancellor Kent’s doctrine, which has been stated only to be repudiated.” Certainly no trace of the doctrine can be found in Sir Matthew Hale’s Treatise, which is quoted in full by Judge Cowen in his note to the case of Ex parte Jennings (6 Cow. 518. 539). Hale is quoted as saying: “ There be other rivers, as well fresh as salt, that are of common or public use, for carriage of boats and lighters. And these, whether they are fresh or salt, whether they flow and re-flow or not, are prima facie publici juris, common highways for man or goods, or both, from one inland town to another.” It can, of course, make no difference whether a river capable of navigation be termed “ navigable in law,” “ navigable in fact ” or “ public,” provided the status of such a river, as to private and public rights, be the same. That the common law did not regard “ navigable ” as synonymous with “ tidal ” should nevertheless be borne in mind, since the contrary opinion, entertained by many judges, may account for the widespread belief that the law of England in reference to fresh waters was not suitable to this nation. Hence, perhaps, the holdings that the beds of certain streams belonged to the people rather than to the “ riparians or heritors of the banks.” Otherwise the opinion might have prevailed that the English common law was perfectly adapted to our needs. It was a law which seems justly to have apportioned rights in navigable fresh rivers to the riparians and to the public at large, furnishing to the former the land proprietorship and to the latter easements of passage. It enabled water powers to be developed for the production of articles of commerce; whereas it preserved the water passages that their transportation might commodiously and cheaply be made. Certainly a means of transportation is worthless if there be nothing to transport.
[277]*277“ The true rule is, that the public have a right of way in every stream which is capable, in its natural state and its ordinary volume of water, of transporting, in a condition fit for market, the products of the forests or mines, or of the tillage of the soil upon its banks. It is not essential to the right that the property to be transported should be carried in vessels, or in some other mode, whereby it can be guided by the agency of man, provided it can ordinarily be carried safely without such guidance. * * * If it is so far navigable or floatable, in its natural state and its ordinary capacity, as to be of public use in the transportation of property, the public claim to such use ought to be liberally supported.” (Per Smith, J., in Morgan v. King, 35 N. Y. 454.) The correctness of this doctrine is universally conceded. Nevertheless it has been held that the Raquette river, the Saranac river and the Black river are not navigable or public streams. (Morgan v. King, supra; People v. Platt, 17 Johns. 195; Munson v. Hungerford, 6 Barb. 265.) The Hudson river, however, at points between Waterford and Fort Edward is said to be navigable. It is said to be navigable at Stillwater. (Palmer v. Mulligan, supra.) It is said to be navigable at Fort Miller. (Harris v. Thompson, 9 Barb. 350; Thompson v. State of New York, 204 App. Div. 684.) It is said to be navigable at Mechanicville. (West Virginia Pulp & Paper Co. v. Peck, 189 App. Div. 286.)
It is self-evident that the Hudson river, somewhere in its windings between Waterford and its source near Mount Marcy, ceases to be navigable, and, like the Raquette and the Saranac rivers, becomes a private stream. Although it has been authoritatively held, therefore, that the Hudson, at points above the properties of the claimant, is navigable, it may be well to make reference to some of the proof which evidences its navigability in the early days of our history. That proof will show the Hudson in its natural state, and indicate the extent and character of its use at a time when, navigated without artificial aid.
The State introduced in evidence many documents and maps relating to the early navigation of the Hudson. (1) A deposition made by Nanning Harmentsen and others on September 7, 1687. Harmentsen and his associates therein describe a journey from Albany to Quebec and return made prior to the year 1687. They state as follows: “ The Examinants declare that four of them in number made their escape in the night from Quebecq and came in five dayes time to Albany all the way by water except one carrying place of about three Dutch miles and another of about 150 paces.” (2) A report from Mr. Livingston to the government of Connecticut, dated April 11, 1690. Livingston says “ the whole jurney to Canida from Albany can be performed by water except att the [278]*278carrying place where ye Canoe is to be carried ten English miles wee must turn our tradeing into warring and instead of loading our Canoes with goods for Canida for Beaver as formerly wee must load ye Canoes with provisions and ammunityon to be revenged of our cruel and perfidious Enemies.” (3) Certain pages from Baseom’s “ The Fort Edward Book.” Bascom describes a trip by General Winthrop from Albany to Canada made by boat in the year 1690, via the Hudson river, and quotes extensively from writings by Winthrop in relation thereto. Winthrop describes the rapids both above and below a place which he terms “ Still Water.” He mentions Fort Miller, which he terms “ Little Carrying Place.” He relates that he came to Fort Edward, which he terms “ Great Carrying Place.” He says that at this point “ we overtook the Dutch Companyes, carrying their canoes over the Great Carrying Place on their backs, about twelve English miles.” Bascom also refers to an expedition made by Sir William Johnson in 1755. Johnson dates a letter from the “ Great Carrying Place.” Bascom says: “ General Johnson sent thirty wagons from the Carrying Place to Stillwater to lighten the batteaux because the water was so shallow there.” (4) Certain pages from “ Historic Highways of America ” by Hulbert. Hulbert, describing forts built at Still-water, Fort Edward, Fort Ann and Lake George in the early part of the eighteenth century, says: “ This chain of forts from Albany to Montreal, guarding the important passageways and water,, marks the line of what was known as the ‘ Grand Pass from New York to Montreal.’ ” Hulbert describes a certain map drawn about 1720 wherein a route from Albany to Canada is given. The route is described as follows: “ 1. To Sprouts or first landing by water 10 miles. 2. To fort Ingoldsby by land when rivers low 14 miles. 3. To a falles by water first carrying place of J mile over, 17 miles. 4. To falles by water 2d carrying place of § m. 4 miles. 5. To fort niccolson by water this is the 3d carrying place now we have Hudson’s river 12 miles. 6. Goe to the camp att wood creeke 16 miles.” (5) Pages from “ The History of the Five Indian Nations of Canada ” by Hon. Cadwallader Golden, published in 1747. These contain a memorial made in November, 1724, describing the commerce carried on between Albany and Montreal. The memorial says: “There has been an Account kept of nine hundred Pieces of Strouds transported thither in one Year, besides other Commodities of very considerable value. The distance between Albany and Montreal is about two hundred Miles, all by Water, except twelve Miles between Hudson’s river and the Wood-Creek, where they carry their Bark Canoes over Land and about sixteen miles between Cahmbly and LaPrairie, [279]*279over against Montreal.” (6) Extracts from “ Travels into North America ” by Peter Kalm. The author describes a trip made by canoe up the Hudson river in the year 1749. He gives a description of the canoes then in use, which he says were hollowed out from a single piece of wood, were sharp at both ends, and were propelled by short “ oars ” wielded by men standing at each end. He describes the rapids, the waterfalls, the portages and the forts between Albany and Lake Champlain. He mentions many saw mills built at Schuylerville, which, he says, were very profitable. He states that the boards were easily brought to Albany and New York in rafts. (7) A map entitled “ Map of the Grand Pass from New York to Montreal.” This map was dated about 1756, and is a copy of a map now in the British Museum. It shows the Hudson river from its source to its mouth, and shows the waterfalls, rifts, portages and fortifications between Albany and Lake Champlain. (8) A report of Cadwallader Golden to Governor Clinton, dated August 8, 1751. Golden describes a water journey from Albany to Canada via “ Hudson’s ” river and Wood creek. (9) Certain pages from “ Travels in the American Colonies,” describing a trip made to Canada by Captain Phineas Stevens in 1752. Stevens tells of two good saw mills at Schuylerville, and “ a very pretty little house ” belonging to Philip Schuyler. He says that the region along the river from Schuylerville to Stillwater is “ all peopling and clearing very fast.” (10) Certain pages from the Journey of Colonel James Montresor, under date of June 15, 1759. He says: “ Friday, set out from Albany at 10 o’clock with Geni. Gage, Messrs. Napier, Goodin and several other Generals, & came to Van Orman’s and got in a whale boat & came to Half Moon and dined at the Widows. Rained & thunder’d. Set out at 4. Came to Still Water. Lay in the Officer’s Barracks — No rest for the Rats. Monday-18th. Set out from Fort Miller in a whale boat and came to Fort Edward about 12 at noon.” (11) Extracts from journal of General Amherst written in 1759. He says: “I arrived at Albany on the 3rd of May, * * * the 5th I ordered three months provisions for 5,000 Men by land to Schenectady, and as much as could be forwarded by water to Fort Edward.” On June first he ordered Montgomery “ to take batteaus & provisions & proceed up the River,” with troops. (12) Extracts from “ A Concise Account of North America,” by Major Robert Rogers, published in 1765. Rogers says: “ The situation of New York is extremely happy for trade. * * * There are easy conveyances to and from it by water, upon its rivers and lakes (except some few carrying places) to Montreal and Quebec northward, and to the great lakes Erie, Ontario, etc. westward.” (13) Certain [280]*280pages from “ Memoirs of an American Lady,” by Mrs. Anne Grant. These describe a journey made by her in the year 1765 up the Hudson river to Canada. She says that the increase of the settlers above Stillwater has become incredibly great; that there are saw mills on every stream; that timber was drawn to the river in sledges; that in the spring the whole neighborhood would put their joint stock into a large raft; that they would float it down the river with a man or two on it. She says: “ There is something serenely majestic in the easy progress of those large bodies on the full stream of this copious river. Sometimes one sees a whole family transported on this simple conveyance; the mother calmly spinning, the children sporting about her and the father fishing on one end and watching its safety at the same time. These rafts were taken down to Albany and put on board vessels there, for conveyance to New York.” (14) Pages from the journal of Charles Carroll of Carrollton. Carroll describes in detail a journey up the Hudson river from Albany made in 1776. Of the return trip he says: “ June 7th. Our servants and baggage being come up, we left Saratoga [Schuylerville] this morning at nine; took boat and went down Hudson’s river through all the rapids to Albany. The distance is computed thirty-six miles. We arrived at Albany half an hour past five.” He states that General Schuyler informed him “ that an uninterrupted water carriage between New York and Quebec might be perfected at fifty thousand pounds sterling expense.” (15) Extracts from “ Orders [to] Colonel Lewis,” dated in the year 1776. They in part read: “ The provision goes from hence in batteaus at Half-Moon, from where it is conveyed in carriages to Stillwater. There it is again embarked in batteaus, and transported to the Saratoga Falls. Thence by land across a small portage. Thence by water to Fort Miller Falls. Then across a small carrying place by land, and again by water to Fort Edward. Then by land to Fort George or Fort Ann. From the former by water to the north end of Lake George, and by land to the Saw Mills, whence it is conveyed by water to Ticonderoga. If it goes by the way of Fort Ann, it is there put in batteaus, and conveyed down Wood Creek to Skeen’s Falls, and rolled across a small portage to the south end of Lake Champlain, and conveyed by water to Ticonderoga. Between this and Half Moon eleven batteaus are now employed, carrying from 160 to 170 barrels.” (15) An extract from a pamphlet of W. Winterbotham, published in 1796, which describes the Hudson river. He there says: “ Its whole length is about two hundred and fifty miles; from Albany to Lake George is sixty-five miles. This distance the river is navigable only for batteaux and has two portages occasioned by falls of half [281]*281a mile each.” (17) Extracts from the “ American Gazetteer,” published in 1797. It there says: “ From Albany to Lake George is 65 miles. This distance the river is navigable only for batteaux, and has two portages occasioned by falls of half a mile each. * * * The advantages of this river for carrying on the fur trade with Canada, by means of the lakes, are very great. Its conveniences for internal commerce are singularly happy. The produce of the remotest farms is easily and speedily conveyed to a certain and profitable market, and at the lowest expense.” In addition to the above, extracts from Palmer’s “ History of Lake Champlain ” and from Parkman’s “ Pioneers of France in the New World ” were given. Palmer describes two ancient routes of journeying from Albany to Lake Champlain. Both routes were up the Hudson river by water to Fort Edward. The routes then diverged, one leading by the way of Fort Ann to the mouth of Wood creek, the other passing by the way of Glens Falls to the head of Lake George. Parkman, writing of Champlain’s journey in 1609, says: “ In the next century this chain of lakes and rivers became the grand highway of savage and civilized war, linked to memories of momentous conflicts.” These data, for the compilation of which the Deputy Attorney-General who argued this case deserves much credit, conclusively show that the Hudson river in its natural state was in early times extensively navigated as far north' as Fort Edward and Glens Falls. To this extent then the navigability of the Hudson rests upon the solid ground of fact rather than upon judicial pronouncements of a dogmatic nature. Whether the Hudson above Glens Falls, where it begins to take on the character of a mountain stream and becomes comparable to the Raquette, the Saranac and the Black rivers, continues to be navigable, is not determined by the proof, and remains an open question.
That the riparian owners upon fresh water rivers, whether navigable or not, own to the thread of the stream, is a general proposition, which, although denied in Canal Appraisers v. People ex rel. Tibbits (17 Wend. 571) and in People ex rel. Loomis v. Canal Appraisers (33 N. Y. 461) is now firmly established in this State. (Commissioners of Canal Fund v. Kempshall, 26 Wend. 404; Smith v. City of Rochester, 92 N. Y. 463; Fulton Light, H. & P. Co. v. State of New York, 200 id. 400; Danes v. State of New York, 219 id. 67.) It was held in the Tibbits case, the Loomis case, the Smith case and the Danes case that the bed of the Mohawk river, notwithstanding the general rule, presumptively belonged to the people of the State. It was said in these cases as well as in the Fulton case, that the bed of the Hudson river above tide water, likewise belonged to the people of the State. All of these cases, however, involved beds of streams [282]*282other than the Hudson. The Court of Appeals has never directly held, so far as our examination discloses, that the bed of the Hudson is thus owned. Its dicta to this effect have largely rested upon the authority of the Tibbits case and the opinions expressed therein as they appear both in 17 Wendell, 571, and 5 Wendell, 423. That case involved the middle sprout of the Mohawk river. Tibbits claimed the bed of the river under a patent to Van Rensselaer of the manor of Rensselaerwyck from the British Crown. The court reasoned that, since this patent was merely confirmatory of an earlier Dutch patent, it must be construed according to the canons of the civil law. This argument is certainly not persuasive upon the present issue since the patents here are exclusively English. Indeed, it may be doubted whether lands upon the Hudson north of the confluence of the Mohawk therewith were ever patented by the Republic of Holland. The court also reasoned that the Legislature of the State of New York by the passage of an act in the year 1792 (Laws of 1792, chap. 40, as amd. by Laws of 1792-93, chap. 8), incorporating one company to improve by canal navigation from the Hudson to Lake Ontario, and another company to make a similar improvement connecting the Hudson with Lake Champlain, wherein it reserved to itself the beds of those streams where not expressly granted, made a declaration of the public ownership of such beds which was conclusive upon others. The argument that the intent of the Crown in granting a patent in 1704 can be judged by the declaration of the Legislature of the State made in the year 1792 is certainly not- impressive. The patents under which this claimant owned were granted between the years 1665 and 1763. It would seem equally unreasonable that they should be interpreted through a legislative declaration in the year 1792. The court further argued that the English law in reference to watercourses was unsuitable to this country and, therefore, declared that the people of the State owned the bed of all navigable rivers. This was a declaration which, as we have seen, was afterwards repudiated. Thus the arguments in the case, which furnished the basis for subsequent pronouncements that the Hudson river bed, as well as the Mohawk river bed, are publicly owned, do not appear abundantly convincing. However, the dicta of the Court of Appeals are weighty, and have been followed by this court. We have already definitely held that the bed of the Hudson river at points between Waterford and Fort Edward is owned by the people. (Thompson v. State of New York, supra.) Such must be the law of this case.
The banks of a river bordering a waterfall furnish land elevations, which, when the banks are tied together by a dam, provide [283]*283opportunity abruptly to drop the flowing waters so that useful power may thereby be generated. The river bed merely furnishes a footing upon which to rest the dam. No one owns the flowing water. (Sweet v. City of Syracuse, 129 N. Y. 335.) “ Water is a movable, wandering thing, and must of necessity continue common by the law of nature; so that I can have only a temporary, transient, usufructuary property therein.” (2 Black. Com. 18.) “ Neither sovereign nor subject can have any greater than a usufructuary right therein.” (Per Ruger, Ch. J., in Smith v. City of Rochester, 92 N. Y. 480.) Since there is no ownership in the waters, who then owns the undeveloped power of a river waterfall? Is it the owner of the river banks? Or is it the owner of the river bed? The Court of Appeals seems to have determined that it is the former rather than the latter. In United Paper Board Co. v. Iroquois Pulp & Paper Co. (226 N. Y. 38), a case involving riparian rights upon the Hudson river, that court said: “ The rule of law is familiar that each owner of land contiguous to a natural water course has a right, as owner of such land and as naturally connected with and incident to it, to the natural flow of the stream along his land and its descent, and all the force to he derived therefrom,." Again, it said: “ The navigability of the river or the ownership of the soil over which the waters flow neither increase nor diminish rights of such a nature.” Therefore, irrespective of the question whether the claimant at the time of the appropriation owned the river bed, it would seem that the State, in seizing the banks then owned by the claimant, appropriated an interest of value in an undeveloped water power, and not merely the rock and earth which composed the banks.
The claimant contends that irrespective of its common-law rights, it was the owner of the bed of the river at Van Schoenhoven rapids and above, by virtue of a legislative grant contained in chapter 164 of the Laws of 1901. The material provisions of that act are as follows: “ Waterford Electric Light, Heat and Power Company, its successors and assigns, are hereby authorized to construct a dam across the Hudson river on the lands now owned by it or which it shall hereafter purchase or acquire in the towns of Halfmoon, Saratoga county, and Schaghticoke, Rensselaer county, in such a manner as not to injuriously affect the water privilege of the Hudson River Power Transmission Company, and such company is hereby authorized to forever maintain said dam and to flood back up said river so far as it owns or shall hereafter purchase or acquire the adjacent uplands or may have or shall hereafter purchase or acquire the rights of flowage thereon for the purpose of maintaining the pond formed by such dam; and any interests [284]*284of the State in lands under the waters of said river covered by said dam or which may be flooded by the erection thereof or under any works which said company shall construct on or adjacent to said dam is hereby granted to said company, its successors and assigns.” It is conceded that the descriptions in the act cover the locus in quo. ' The act purports to grant • to claimant “ any interests of the State in lands under the waters of said river covered by said dam or which may be flooded by the erection thereof.” If the act was valid, then the claimant, by virtue of its provisions, did become vested with a proprietary interest in the river. The State claims, however, that the Legislature, through the enactment, attempted to abdicate its governmental powers, and that the act was, therefore, without force.
The State, in its relation to the Hudson river, enjoys a double character. It is the proprietor of the lands under the waters of the river. It is, also, the representative of the public at large, in whom is vested the easement of passage along the stream. If it conveys the under water lands to an individual its act has the quality of an ordinary grant by a land proprietor. If, as the representative of the public, it releases the easement of passage, or if its grant of the land expressly or impliedly carries with it a right to defeat or diminish the public use, it exercises sovereign or governmental powers. (People v. New York & S. I. F. Co., 68 N. Y. 71; Smith v. City of Rochester, 92 id. 463; Langdon v. Mayor, etc., 93 id. 129.) It has sometimes been thought that because the King of England, while empowered to convey the bed of navigable waters, could not release the public easement, therein, therefore, the Legislature of a State had no such power. This was an erroneous theory. It was said by Hand, J., in Morgan v. King (18 Barb. 277): “ I am aware that it has been said the Crown can not grant a right to obstruct a public navigable river. [Williams v. Wilcox, 8 A. & E. 314; 3 Kent, 427.] But Parliament can. [Woolr. on Ways, 60; Rex v. Montague, 4 B. & C. 598. And see Abraham v. Great Northern R. Co., 16 Q. B. Rep. 586. Reg. v. Betts, Id. 1022.] And our Legislature, when acting within the pale of the Constitution, has full power over the matter.” It was said by Andrews, J., in People v. New York & S. I. F. Co. (supra): “ But while the sovereign can make no grant in derogation of the common right of passage over navigable waters, Parliament may do so. * * • * The State in place of the Crown, holds the title, as trustee of a public trust, but the Legislature may, as the representative of the people, grant the soil, or confer an exclusive privilege in tide waters, or authorize a use inconsistent with the public right.” It was said by Earl, J., in Langdon v. Mayor, etc. (supra, 155): “ The Crown could convey [285]*285the soil under water so as to give private rights therein, but the dominion and control over the waters, in the interest of commerce and navigation, for the benefit of all the subjects of the kingdom, could be exercised only by Parliament.” It was said by Bartlett, Ch. J., in Matter of Long Sault Development Co. (212 N. Y. 1): “ The power of the Legislature to grant land under navigable waters to private persons or corporations for beneficial enjoyment has been exercised too long and has been affirmed by this court too often to be open to serious question at this late day.” It is self-evident, however, that the right of'the Legislature of the State to release its governmental powers over navigable waters has certain limitations. These are stated by Mr. Justice Field in Illinois Central Railroad v. Illinois (146 U. S. 387) as follows: “ But that is a very different doctrine from the one which would sanction the abdication of the general control of the State over lands under the navigable waters of an entire harbor or bay, or of a sea or lake.” And, again, he says: “It is only by observing the distinction between a grant of such parcels for the improvement of the public interest, or which when occupied do not substantially impair the public interest in the lands and waters remaining, and a grant of the whole property in which the public is interested, that the language of the adjudged cases can be reconciled.” Bartlett, Ch. J., in Matter of Long Sault Development Co. (supra), limits the power of the Legislature as follows: “The contemplated use, however, must be reasonable and one which can fairly be said to be for the public benefit or not injurious to the public.” He then quotes with approval from Coxe v. State of New York (144 N. Y. 396), the following: “ Grants to the owners of the adjoining uplands, either for beneficial enjoyment or for commercial purposes, have long been authorized and recognized as one of the uses to which the State may lawfully apply such lands.” Farnam says: “ The limit of this power is the necessity of the case; and until the injury greatly exceeds the public benefit the obstruction will not be interfered with by the courts. It is primarily for the Legislature, and not for the courts, to determine between the conflicting interests and the necessity of requiring the navigation right to yield, and its discretion will not be interfered with by the courts, except in cases of a plain and gross abuse of discretion.” (§ 84.)
We have hitherto discussed the question whether the Hudson river between Waterford and Fort Edward was in law a navigable stream. In order to find the solution we considered the uses made of the river when still in its natural state at times now remote. We have here a wholly different question. Did the legislative grant to claimant in the year 1901 unreasonably or substantially [286]*286limit navigation upon the Hudson river? Below Waterford there was then a dam at Troy having an elevation of more than twelve feet. From Troy up stream to Fort Edward, a distance of forty miles, the natural rise in the river was 118 feet. Six dams, other than the Troy dam, then stood upon the river bed between these two points. One of these dams had an elevation of fifteen feet. Therefore, at this time, continuous travel upon the river between Troy and Fort Edward had become impossible, and had ceased. Logs either singly or in rafts no longer passed down the stream. Through trips with small craft, whether up or down stream, whether in low water or in high, had been completely barred. On the other hand, the erection of dams had made more feasible the navigation of the waters lying between them. The Van Schoenhoven rapids dropped the river water, as we have seen, nine feet in one-half mile. No freight-laden or passenger-carrying vessels could navigate them, and if in seasons of high water small craft were occasionally floated through them, nevertheless, navigation at this point was at best ephemeral and inconsequential. Therefore, the erection of a dam at Split Rock, which was authorized by the Legislature, could not substantially or unreasonably have impaired navigation. On the other hand, it would have improved navigation upon the stretch of water above to the foot of the dam of the Hudson River Power Transmission Company, four miles away. Indeed, the State itself has seized the claimant’s properties for the purpose of improving navigation by the erection of such a dam and the consequent raising of the waters above. Therefore, it seems to us that the legislative grant made to the claimant, within all the authorities cited, since it could not materially affect navigation, was a valid grant.
The State also contends that under the River and Harbor Appropriations Act of March 3, 1899 (30 U. S. Stat. as Large, 1151, § 9; U. S. Comp. Stat. 1918, § 9971; Barnes’Fed. Code 1919, § 9437), the claimant could not have built a dam at Van Schoenhoven rapids without a Federal license; that it had no such license; consequently, that when its lands were appropriated the water power seized was valueless. The argument proves too much. Assuming that the act applied to the Hudson river at this point, then, if it barred the erection of a dam by the claimant, it barred the erection of a dam by the State. It is, of course, true that not even the State itself may exercise the power of eminent domain for other than a public purpose. “ The general grant of legislative power in the Constitution of a State does not enable the Legislature, in the exercise either of the right of eminent domain or of the right of taxation, to take private property, without the owner’s consent, for any but a public object.” (Per Gray, J., in Cole v. [287]*287La Grange, 113 U. S. 1.) The Barge Canal Act (Laws of 1903, chap. 147) directed that the route of the Champlain canal should be as follows: “ Beginning in the Hudson river at Waterford thence up the Hudson river canalized to near Fort Edward; thence via the present route of the Champlain canal to Lake Champlain near Whitehall.” It empowered the appropriation of “ lands, structures and waters ” which “ for the use of the improved canals ” should in the judgment of the State Engineer “ be necessary.” (See §§ 3, 4, as respectively amd. by Laws of 1921, chap. 687, and Laws of 1913, chap. 801, and intermediate amendments.) If the State had no power to build a dam at Van Schoenhoven rapids, because of the lack of a Federal license, then the acquisition of the lands of the claimant could not be “ necessary ” “ for the use of the improved canals,” and a public purpose for which the lands and rights might have been appropriated was non-existent. In this view, the proceedings in condemnation were unlawful; the State has been a trespasser; and the claimant is now the owner of the river banks and bed together with the structures erected thereupon by the State. However, it is clear that the State, as between itself and the claimant, cannot be heard to raise the bar of the Federal act to avoid the payment of compensation, when it has appropriated the claimant’s water rights to build, and has actually built, the very dam which it urges was prohibited. Viewed in a practical way the matter stands thus: The State now has a developed water power which is valuable. All that it now has was developed from that which was owned by the claimant. Therefore, the value of the developed power, less the cost of development, is the value of the thing taken from claimant, and should measure the compensation to be paid to it. The State’s argument, carried to its logical consequence, would empower the State to appropriate, for purposes other than the improvement of navigation, all the water powers in the State which are situate upon navigable rivers, and enable it, in cases where Federal licenses have not been obtained, to limit the compensation to be paid by it to the value of the uplands taken and no more. We think that the argument should not here prevail to limit the compensation payable to this claimant.
The State further contends that the riparian rights of the claimant were held subject to the paramount right of the State to improve navigation; that the State built the dam at Van Schoenhoven rapids in the exercise of this right; that the claimant is, therefore, not entitled to compensation. In Commissioners of Canal Fund v. Kempshall (supra) the State, in the course of constructing an aqueduct for canal purposes, obstructed a raceway by which water was conducted from the Genesee river to a mill of a riparian [288]*288owner. It was held that the State must respond in damages to the mill owner for the injury done. The court said: “ I cannot assent to the position that the conceded common law authority of the State over such rivers for the purposes of navigation, comprehends the right to divert the waters to other purposes of artificial navigation wholly distinct from that' of the river itself.” In Fulton Light, H. & P. Co. v. State of New York (200 N. Y. 400) the State appropriated the lands of a riparian owner on the navigable Oswego river for the purpose of filling a canal constructed to enable vessels traversing the river to pass the mill dam of the owner. The court held that the claimant was entitled to compensation on account of the diversion of the river waters from their natural course. The court said: “ When, however, it is not the channel, or bed, of the river, which is to be regulated, and land is taken and the river waters are diverted for the purpose of constructing and operating some other channel distinct from that of the river, then the limit of the State’s authority freely to intrude upon the riparian owner’s rights has been reached.” The claimant in this case, having been granted the bed of the Hudson river, enjoyed the same rights in respect to the flow of that stream which the riparian owners in the Kempshall and Fulton cases enjoyed in respect to the Genesee and the Oswego. The State appropriated the claimant’s property with the intention of diverting the waters of the Hudson from the natural channel into an artificial channel. It has actually erected a canal and lock which for 5,000 feet carry the river waters outside the bounds of the river so that they no longer pass over the water power site formerly owned by the claimant. The cases cited, therefore, apply to entitle the claimant to compensation. We are not unmindful of the holding in the case of United States v. Chandler-Dunbar Co. (229 U. S. 53). That case involved the question of compensation to be paid by the United States to a riparian owner .whose property had been appropriated by the United States for purposes of navigation. This case involves the question of what the State of New York must pay for an appropriation made by it. Upon that issue the Chandler-Dunbar case is not controlling. “ The States have authority to establish for themselves such rules of property as they may deem expedient with respect to the streams of water within their borders both navigable and non-navigable, and the ownership of the lands forming their beds and banks.” (United States v. Cress, 243 U. S. 319, 320.) The courts of this State have determined these rules of property and have decided what the State must pay, and when, in the instances of its seizure of water power rights for purposes of navigation. In these questions the United States has no concern.
[289]*289It must be borne in mind that the State has not limited itself to the erection of a dam, the construction of a canal and lock, and the diversion of waters sufficient to operate the same. It has seized, for all purposes whatsoever, all the property and rights of the claimant. The claimant may not now enjoy the power taken in subordination to the uses of navigation. It may not make use of the undiverted waters which come to the crest of the dam. The State has become the proprietor of the water power and may employ it for gainful purposes. For the thing of value which it has taken it should, therefore, pay.
This case finds a close parallel in First Construction Co. v. State of New York (221 N. Y. 295). There the State had granted to the predecessors of the claimant the right to erect wharves upon lands under water in Gowanus bay in Brooklyn, N. Y. The harbor improvement intended to be made was far from being completed when the State of New York made appropriation for Barge canal purposes of a portion of the rights conveyed. The lands involved were for the greater part under water lands and unimproved. The Court of Appeals held that the claimant was entitled to compensation for all the under water lands taken whether built upon or otherwise. Chief Judge Hiscock, writing for the court, after pointing out that in some States the rights granted were held to be mere licenses, revocable at will, said: “ I think, however, that the privilege amounts to more than this, and that an act granting the right to fill in lands under water, and thereby acquire title to the same, gives an inchoate, vested interest in the lands described which is ^a property right and of which, unless forfeited or lost in some way, the grantee cannot be deprived without compensation." And this was the holding notwithstanding that the appropriation made by the State was for purposes of navigation. We think that that case is conclusive upon the issue now made.
The question of interest remains. The Court of Claims has found that the lands and flowage rights owned by claimant “ constituted one entire property whose most beneficial and valuable use was its employment as a whole for the development of water power,” and that “ its value depended upon its use as an entirety.” The State made twenty-two separate appropriations of parcels of lands owned or controlled by the claimant. Three of these parcels were appropriated in the year 1910, and the remaining parcels were appropriated in the year 1913. Parcel No. 2318 consisted of forty-seven one-hundredths acres owned in fee by the claimant. This parcel is located on the easterly side of the river immediately above the easterly end of the dam which has been erected by the [290]*290State. The date of its appropriation was June 13, 1910. Parcel No. 2402, consisting of six and six-tenths acres, was owned in fee by the claimant, and lies on the westerly side of the river. It is immediately above the westerly end of the dam which has been erected by the State. This parcel was appropriated on July 15, 1910. The ownership of these two parcels by the claimant made possible the erection of a dam and a development of a water power by the claimant. They were indispensable units in its proposed development. Therefore, when the State took these parcels, it deprived the claimant of its water power. We think that the claimant is entitled to interest from June 13, 1910, the earlier of the two dates, and the date of the appropriation of parcel No. 2318.
The judgment should be modified by providing for the payment of additional interest as stated herein, and as modified should be affirmed, with costs.
All concur, Hinman, J., with an opinion, except Van Kirk, J., dissenting, with an opinion in which Cochrane, P. J., concurs.