Varick vs. Smith and The Attorney General, 9 Paige Ch. 547

The Chancellor. This court having, in a former stage of the suit, determined that the bill in this case was properly filed if the facts stated therein were true, the complainant was entitled to a decree protecting his right to the water privileges claimed by him, and to the use of the waters which would naturally flow over the state dam on the west side of the river, which were not wanted for the use of the canal, if he succeeded in showing a title to the alveus or bed of the stream on that side; subject to the public right of navigation, so far as it is navigable.

And without taking time to follow the vice chancellor in his able and elaborate opinion upon the question of title, I concur in the conclusion at which he arrived, that the complainant succeeded in establishing his title, substantially as stated in his bill. The patent from the state for lot No. seven, under which the complainant has derived his title to the lands adjoining the dam and for some distance below the same, by legal construction conveys the alveus or bed of the river to the centre of the stream, where it meets the lands granted by the S crib a patent on the east side of the river.

The patent for No. 7 refers for its location to the map of the township of Hannibal filed in the surveyor general’s office. And upon that map the lot is bounded generally on the Oswego or Onondaga river on the east. It is the same, therefore, as if the patent had in terms bounded the lands granted by the river, without restriction or limitation ; which would legally have carried the grant to the centre of the stream, subject to the right of the public to navigate the stream in those parts thereof, if any, in which it was navigable.

The patent from the state to Yarick, for blocks 78, 90, 99 and 103 in West Oswego, also refers in the same manner to a map filed in the office of the secretary of state ; which map bounds these blocks on the river without restriction. And the complainant under that grant was therefore entitled to the water and water privileges which were naturally connected with those water lots.

It may also be proper to observe that by the surveyor general’s certificate, it appears that these blocks were sold to Yarick & Turrill in July, 1827, and that the sale of the surplus waters in the dam did not take place until the next month. If the waters which were not wanted for the use of the public, and which naturally flowed over the dam and down the original channel of the river, therefore, were of any benefit to the owner of these water lots, or could be used by such owner without interfering with the public right of navigation, the complainant obtained the prior right by virtue of such purchase.

For these reasons, and those which were given when the case was before me upon demurrer, I think the decree appealed from, so far as respects the rights of the complainant, was not erroneous j and the same must be affirmed with costs. But upon the argument, the attorney general and the counsel for Mr. Smith, consented that the decree should be so modified as to be without prejudice to the right of the state and of Smith, as between themselves. It must therefore be modified accordingly in that respect. The decree upon this appeal to be entered as of the 6th of February, 1840, nunc pro tunc.