FISHERIES, GAME AND FORESTS. 379 



Claimant's Position. 



Claimant's theory of the case is that the State of New York has appropriated the submerged land 

 and the water thereon for its own purposes, and that the case is to be disposed of the same, so far as 

 the legal rights of the parties are concerned, as if the State had actually condemned a strip of land of 

 the size and dimensions indicated by the outlines of the reservoir; and that as to the appropriated 

 lands the title vests in the State absolutely, and that the lands thus flooded, together with the use of 

 the water in the Beaver River, have been taken and appropriated exclusively by the State ; and that 

 the claimant, his heirs, successors and assigns have not the right to use the land appropriated, with 

 the water thereon, for any purpose in connection with the balance of the tract. 



A single glance at the map, taking into account the topography of the country, without the aid of 

 any testimony, shows that this crooked strip of land, ten miles or more, extending from the western 

 boundary of the tract right into its very centre, is absolutely necessary for lumbering purposes, to 

 cross and recross with supplies and loads, and to use for the purpose of floating the product of the 

 forest to market, and that without the land or the use of the land and water which the State has 

 flooded and taken, the claimant has suffered serious damages. 



There can be no doubt but that the State takes a fee of the lands flooded. The language of the 

 statute is : " The fee simple of all premises so appropriated " • • • " shall vest in the people of 

 the State." (i R. S., 732, * 52, 8 ed.) 



Position of the State. 



The position of the learned Attorney-General is, in short, that the State does not take the fee of 

 the land, but merely appropriates an easement, and that, subject to the paramount right of the 

 State to the use of the land and waters, that the adjacent land owners have the right to use the same 

 in any way that they see fit. 



For the purpose of the submission of the controversy in view of a purchase and settlement, the 

 claimant will here concede that the position of the Attorney-General is the correct legal position ; but 

 we still claim that even if such a rule as contended for by the Attorney- General were applied, the 

 damages are still greater than stated by the claimant in his printed claim. 



First. The Beaver River and its Tributaries are Natural Highways, having Size 

 AND Capacity for the Purpose of Floating Logs. 



The Beaver River is a large stream of water, having its origin in the northern part of Hamilton 

 County and flowing westerly across the county of Herkimer, and empties into the Black River at 

 Castorland, in the county of Lewis. The Black River flows north through Carthage, Watertown and 

 Dexter, and empties into Lake Ontario. 



The evidence shows that not only has the Beaver River size and capacity sufficient for the purpose 

 of floating logs, but that it has been continuously used for a long time for logging purposes. 

 Having capacity to float logs, the stream is by the common law of this State a highway which anyone 

 is at liberty to use for logging purposes. 



Morgan vs. King, 35 N. Y., 454; 



Tibbitts vs. Canal Appraisers, 13 Wend., 355, page 371 ; 



Brown vs. Scofield, 8 Barb., 239, page 243 ; 



Palmer vs. Mulligan, 3 Caine, 307, page 318; 



Canal Appraisers vs. People ex. rel. Tibbitts, 5 Wend., 423 ; 



Ex parte Jennings, 6 Cow., 518, page 527; 



People vs. Piatt, 17 John, 195, page 211; 



Shaw vs. Crawford, 10 John, 236 ; 



The Town of Pierrepont vs. Wm. D. Lovelace, 72 N. Y., 211, page 216; 



Washburn on Easements, page 397 ; 



2 Am. and Eng. Ency. of Law, page 470, and cases cited ; 



16 id., page 259, and cases cited; 



