﻿HYDROLOGY 
  OF 
  NEW 
  YORK 
  535 
  

  

  Although 
  not 
  specially 
  germane 
  to 
  the 
  subject, 
  it 
  may 
  be 
  re- 
  

   marked 
  in 
  passing 
  that 
  this 
  condition 
  of 
  absolute 
  -State 
  ownership 
  

   only 
  applies 
  to 
  the 
  Hudson 
  and 
  Mohawk 
  rivers. 
  The 
  titles 
  to 
  

   lands 
  bordering 
  on 
  the 
  balance 
  of 
  the 
  large 
  rivers 
  of 
  the 
  State 
  

   have 
  mostly 
  originated 
  since 
  the 
  English 
  occupancy 
  and 
  the 
  com- 
  

   mon 
  law 
  rule 
  governs. 
  Lack 
  of 
  appreciation 
  of 
  this 
  distinction 
  

   on 
  the 
  part 
  of 
  the 
  Canal 
  Appraisers 
  has 
  led 
  to 
  a 
  number 
  of 
  ex- 
  

   tensive 
  litigations. 
  One 
  of 
  these 
  is 
  Kempshall 
  vs. 
  The 
  Commis- 
  

   sioners 
  of 
  the 
  Canal 
  Fund, 
  decided 
  in 
  1842, 
  wherein 
  it 
  is 
  expressly 
  

   held 
  that 
  the 
  banks 
  and 
  bed 
  of 
  the 
  Genesee 
  river 
  belong 
  to 
  the 
  

   riparian 
  owners, 
  and 
  that 
  even 
  though 
  the 
  stream 
  had 
  been 
  legis- 
  

   latively 
  declared 
  a 
  public 
  highway, 
  still 
  such 
  declaration 
  only 
  

   gave 
  rights 
  of 
  navigation 
  on 
  the 
  stream 
  itself, 
  and 
  did 
  not 
  in 
  any 
  

   degree 
  confer 
  upon 
  the 
  State 
  the 
  right 
  to 
  divert 
  its 
  waters 
  into 
  

   another 
  channel, 
  as 
  the 
  Erie 
  canal, 
  without 
  first 
  obtaining 
  such 
  

   right 
  by 
  an 
  exercise 
  of 
  eminent 
  domain 
  and 
  the 
  granting 
  of 
  just 
  

   compensation 
  under 
  due 
  process 
  of 
  law. 
  1 
  

  

  If, 
  then, 
  the 
  State's 
  title 
  to 
  the 
  water 
  of 
  the 
  Hudson 
  river 
  is. 
  

   complete, 
  there 
  is 
  still 
  responsibility 
  attached 
  to 
  such 
  ownership. 
  

   The 
  conditions 
  leading 
  to 
  this 
  ownership 
  were 
  peculiar 
  and 
  excep- 
  

   tional 
  and 
  at 
  variance 
  with 
  the 
  rules 
  governing 
  not 
  only 
  in 
  the 
  

   balance 
  of 
  the 
  State 
  of 
  New 
  York, 
  but 
  in 
  most 
  of 
  the 
  other 
  states 
  

   as 
  well. 
  When 
  the 
  legislature 
  first 
  affirmed 
  this 
  principle 
  one 
  

   hundred 
  and 
  twelve 
  years 
  ago, 
  manufacturing, 
  as 
  any 
  considerable 
  

   element 
  of 
  our 
  State 
  and 
  National 
  wealth, 
  was 
  an 
  unknown 
  quan- 
  

   tity. 
  Its 
  phenomenal 
  development 
  since 
  then 
  has 
  created 
  condi- 
  

   tions 
  and 
  needs 
  so 
  entirely 
  different 
  that 
  if 
  we 
  attempt 
  to 
  decide 
  

   the 
  questions 
  of 
  today 
  by 
  the 
  old 
  standard 
  we 
  shall 
  paralyze 
  the 
  

   industries 
  of 
  a 
  locality. 
  

  

  As 
  regards 
  the 
  paramount 
  right 
  of 
  the 
  State 
  to 
  the 
  waters 
  of 
  

   these 
  streams, 
  it 
  may 
  be 
  assumed 
  that 
  the 
  only 
  direction 
  in 
  which 
  

   the 
  State 
  is 
  likely 
  to 
  exercise 
  this 
  right 
  is 
  in 
  the 
  interests 
  of 
  navi- 
  

   gation, 
  and 
  inasmuch 
  as 
  its 
  exercise 
  for 
  this 
  purpose 
  on 
  the 
  tidal 
  

   section 
  can 
  only 
  be 
  of 
  benefit 
  to 
  the 
  other 
  interests 
  on 
  the 
  stream, 
  

   there 
  is 
  every 
  reason 
  why 
  such 
  an 
  exercise 
  of 
  the 
  right 
  should 
  

   be 
  made. 
  

  

  'Kempshall 
  vs. 
  Commissioners 
  of 
  the 
  Canal 
  Fund, 
  26. 
  Wendell, 
  404. 
  

  

  