De Camp v. . Dix

Haight, J. This action was brought by the plaintiff’s testatrix to restrain the defendants from floating logs down the north branch of the Moose river over her lands. The defenses *438 interposed are to the effect (1) that the defendants are entitled to float logs in the north branch of the river as a right of way by necessity; (2) that the north branch and Big Safford creelc are public highways at common law for the floating of logs and timber; (3) that the north branch has been declared a public highway by the statutes of this state. The case was tried by a referee, who found that the defendants were not entitled to a right of way by necessity, and that the north branch of the Moose river and Big Safford creek were not of sufficient size for the floating of logs and timber without artificial means, and that they, consequently, were not public highways at common law. These findings have been unanimously affirmed in the Appellate Division, thus disposing of those branches of the case. As to the other defense, it appears that the legislature in 1851, by chapter 207, enacted that Moose river, together with the north and south branches thereof, should be a public highway for the purpose of floating logs and timber. Section four of this act was amended in 1894 by chapter 712, so as to provide that “ persons desirous of floating logs or timber down said stream may construct a chute or apron in connection with any dam across said stream, and may reconstruct any booms already constructed, or hereafter to be constructed in, over and across said stream, in such manner as to allow logs and timber to pass by the same, doing no unnecessary damage to the owner or occupants of said boom, and paying to such occupant or owner all damages that he or they may sustain by reason of the floating of logs and timber, or the alteration of dams or booms, said damages to be ascertained by three commissioners to be appointed by the Supreme Court,” etc. The provisions of this act were considered by us in Matter of the Application of Thomson to Float Logs and Timber down Moose River over the Lands of De Camp, in 147 N. Y. 701, in which case we affirmed, upon the opinion below (86 Hun, 405), holding that the owner of woodlands upon Moose river has no right, under the acts in question, to condemn an easement in the river and lands on either side to the extent of *439 ten feet, in order to enable him to float logs to market; that the acts were unconstitutional, in so far as the owners of the bed of the stream were concerned, for the reason that it only-provided for compensation to the owners of dams or booms "upon the stream. It is now contended that these acts are valid, as being the legislative exercise of a right reserved, and as a location of lands for highway purposes belonging to the state, and that, consequently, no compensation to the owner was required. This question has not before received attention in this court. It has been very fully considered in the learned Appellate Division, and the very excellent opinion written by that court has our approval, and renders an elaborate discussion of the question by us unnecessary. The original patent through which the plaintiff claims title was issued" to one Macomb. The provisions of this patent reserved to the People of the state “ all gold and silver mines and five acres out of every hundred aci’es of said tract of land for highways.” The contention of the appellants is, that the act declaring Moose river a public highway was an appropriation of the lands for that purpose reserved to the state in this patent: We think there is difficulty in sustaining this contention. It will be observed, in the first place, that there is nothing in the provisions of the act of 1851, or of the amendment thereof, indicating an intention or purpose on the part of the legislature to locate and appropriate the lands reserved under the Macomb patent. In the act, Moose river is declared a highway for the purpose of floating logs and timber, and for no other purpose. The reservation in the patent is for “ highways ” without limitation. The meaning of the term “ highways,” as used in the patent, was considered by us to some extent in Matter of the Petition of Burns to home Commissioners Appointed to Assess the Damages of the Riparian Owners on Roaring Brook (155 N. Y. 23). In that case it was claimed that the act declaring Boaring brook to be a public highway, and authorizing the right of eminent domain, was violative of section 18 of article three of the *440 Constitution, which prohibits the passage of a private or local bill “ laying out, opening, altering, working or discontinuing roads, highways or alleys.” We then held that the term “ highways,” as ordinarily used and understood, and as it was. used in the Constitution, did not include streams of water or water highways. It is true that the high seas are often spoken of as the highway of nations, and that the great lakes, public, rivers and canals are treated as public water highways, free to-the use of-all persons; but highways, as it is ordinarily used and understood, especially when used in connection with the conveyance of land, has a very different meaning. It has reference, in such cases, to the roads opened through the country upon land for the travel of persons with their animals and vehicles. In such sense, we think, it was used in the patent,, and, consequently, the acts in question could not appropriate it. for waterways. The judgment should be affirmed, with costs.