Knickerbocker Ice Co. v. . Shultz

Parker, J. The state has succeeded to all the rights of both crown and parliament in the navigable waters and the soil under them. (Langdon v. Mayor, etc., of New York, 93 N. Y. 129.) Through the medium of the legislature, the state may exercise all the powers which previous to the Revolution could have been exercised either by the king alone or by him in conjunction with his parliament, subject only to those restrictions which have been imposed by the Constitution of this state or of the United States. (People v. N. Y. & Staten I. Ferry Co., 68 N. Y. 71.) The right to navigate the public waters and to fish therein are public rights belonging to the People at large. In that respect every individual has the same right. The riparian proprietor cannot interfere with such user by the public! Should he attempt to appropriate to his own use the lands under water in front of his premises, and to that end should build thereon, it would constitute a purpresture which thé state could remove. (People v. Vanderbilt, 26 N. Y. 293; People v. N. Y. & S. I. F. Co., supra.) *388 The state, then, having full power and control of the lands under water between high and low-water mark, by the several enactments of its legislature vested the authority to dispose of the same in a body known as tlie.“ Commissioners of the Land Office.” (Charter 47, Laws of 1786, and the several acts amendatory thereof and supplementary thereto.) Among other limitations in the grant of power in such respect to the commissioners of the land office is the following : “ Provided always, that no such grant shall be made, in pursuance of this act, to any person whatever other than the proprietor or proprietors of the adjacent lands.” The plaintiff in 1873 obtained from the commissioners of the land office a grant of the land under water in front of its upland, the lateral limits of which were perpendicular to the shore. They could acquire no more. (People v. Schermerhorn, 19 Barb. 540.) However, in the use which it made of the property under its grant, the plaintiff was accustomed, during a period of about four weeks in the year, to tow ice cakes over the lands under water in front of the uplands belonging to the defendants. Subsequently, and in the. year 1877, defendants obtained a grant from the commissioners of the land office, which grant recited, among other things, that the grant was to the defendants “for the purpose of beneficial enjoyment of the same by the adjacent owner.” Thereafter, in the year 1883, the defendants, within the lines of their grant, commenced the erection of a-dike which the plaintiff alleges will interfere with the use to which it has devoted its land because it will prevent the towing of ice calces to that portion of its wharves where its elevator is now situated. How, it will be observed that the plaintiff’s grant does not include the locus in quo. If it did, it • would be void because made to one other than the proprietor of the adjacent uplands. It has not acquired a right by prescription, for where no express grant can be allowed the law will not resort to the fiction of an implied grant for the purpose of creating a prescriptive right. (Burbank v. Fay, 65 N. Y. 57.) It follows, then, that the appellant has not acquired any legal ' right or interest in or to these lands under water, or the waters *389 covered by the respondent’s grant, either by grant or prescription, and, therefore, it is not in a position to question the character of the structure which the defendants constructed upon the lands covered by the grant to them. It is unnecessary to consider the question as to whether the dike which the defendants have erected is permissible under the grant which they hold. For, assuming that it could be determined that it constituted either a purpresture or a nuisance, the plaintiff could not maintain an action for its abatement. A purpresture is an invasion of the right of property in the soil while the same remains in the People. A nuisance in such a case as this must be an injury to the common right of the public to navigate the waters. (People v. Vanderbilt, 26 N. Y. 293.) And these questions can only be tested in an action at the suit of the People. (Eden on Inj. § 9, p. 259; Lansing v. Smith, 8 Cow. 151; People v. Vanderbilt, supra; People v. N. Y. & S. I. F. Co., supra.) The judgment should be affirmed. All concur. Judgment affirmed.