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. 



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



