534 



NEW YORK STATE MUSEUM 



any counterclaim by the State as absolute proprietor. The court 

 said : " It is beyond dispute that the State is the absolute owner 

 of the navigable rivers within its borders, and that as such owner 

 it can dispose of them to the exclusion of the riparian owners.'' 1 

 In the case of The People vs. The Canal Appraisers, decided in 

 1865, the following points are passed upon affirmatively : 



1) The Mohawk river is a navigable stream and the title to 

 the bed of the river is in the people of the State. 



2) Riparian owners along the stream are not entitled to dam- 

 ages for any diversion or use of the waters of the Mohawk river by 

 the State. 



3) It seems the common law rules, determining what streams 

 are navigable, are not applicable in this country. 



This was a proceeding by mandamus, decided by the Supreme 

 Court and carried to the Court of Appeals, to compel the Canal 

 Appraisers to assess and appraise the damages which one A. 

 Loo-mis had sustained by the diversion of the Mohawk river at 

 Little Falls for the purposes of the Erie canal. After a learned 

 discussion of the several questions involved, the court held as in 

 the foregoing 1), 2) and 3) ; the judgment of the Supreme Court 

 was affirmed and the mandamus denied. 2 



Without discussing the question more elaborately, we may con- 

 clude it is a well settled doctrine that the banks to high- water mark 

 and the beds and waters of the Hudson and Mohawk rivers are 

 the property of the (State and may be disposed of as the legislature 

 may see fit, and absolutely without reference to the rights of 

 abutting proprietors. Acting on this view, the Erie and Cham- 

 plain canals have taken water supplies from these two rivers and 

 payments of damages have never been made to anybody. As re- 

 gards the Hudson river, the principle, so far as can be learned, 

 has never been questioned since the legislature first saliently af- 

 firmed it by the enactment of 1792. For one hundred and twelve 

 years, the State's right to absolute control of the Hudson river 

 lias been a fixed fact, alike recognized by the courts, canal officials 

 and the owners of abutting lands. 



'The People vs. Tibbetts, 19 N. Y. 523. 



2 The People vs. The Canal Appraisers, 33 N. Y. 4G1. 



