The defendant claims title to the bed of the stream across which he has built his dam. His appropriation is permanent and for his individual benefit solely. He owns the adjacent lands. The stream is the southwestern or outermost branch of the mouth of the Mohawk. There are several branches or sprouts through which the Mohawk finds its way to the Hudson, and it may be inferred from the evidence that, at the time of the original grant to Van Rensselaer in 1685, the southwest branch was one of the main branches, if not the main branch of the river at that locality, and that there-was no doubt then of the navigability in fact of the river within the rule applicable to such rivers. (The Montello, 20 Wall. 430; Morgan v. King, 35 N. Y. 454.) It was undoubtedly a public river.
*114It is apparent from the grant to Van Rensselaer in 1(185, under which the defendant claims title, that the Hudson river was then supposed to extend to the Cohoes falls, and if so the mainland along the branch or sprout in question was understood then to be the west bank of the Hudson river. The grant was of tracts “ lyeing and being on and upon the Banks of Hudsons River,” beginning at the south end or part of Berrent island and “ extending northwards up along both sides of the said Hudsons River into a place heretofore Called the Iiahoos or the Great falls of the said River & extending it selfe East and West all along from Each side of the said River backwards into the Woods twenty fouer English Miles.”
This description, it will be observed, is from the west side of the river westward, and from the east side of the river eastward, and, therefore, whatever was between the east and west banks of the river would be excluded and not within the bounds of the grant, Unless by implication the bounds on either side went to the center of the stream. Such a construction would not be permissible within the cases that hold that the Mohawk and the Hudson river above tide water are navigable streams, and the title of the bed of the rivers in the People of the State. (The Canal Appraisers v. The People ex rel. Tibbits, 17 Wend. 571; The People ex rel. Loomis v. The Canal Appraisers, 33 N. Y. 461; Smith v. City of Rochester, 92 id. 463; Crill v. City of Rome, 47 How. Pr. 398; affd. at General Term [see 12 N. Y. St. Repr. 209] ; Jones v. Jones, 1 How. Pr. [N. S.] 510.) In the Loomis case in 33 Hew York the subject of navigable streams was elaborately and thoroughly discussed, and the conclusion there reached as to the status of the Mohawk river has not been overruled.
An element of some importance in the construction of this patent is the circumstance which seems to be quite clearly manifest, that the grant was only in confirmation of grants Van Rensselaer had acquired from .the Dutch authorities, and that such grants would, under the Dutch law, be construed as not vesting title to navigable or public streams, whether tidal or not.
Hor does the general clause following the description, “ togather with all and Every the lies Islands Rivers Creeks Runns of Waters Mines Mineralls * * * and all other Royalties, Powers * * * and Hereditaments whatsoever to the said Premises or any Parte *115thereof belonging or Appertaining,” change the result. It does not operate as against the State to convey lands under water not withia the boundaries of the grant.
The question whether the defendant, under the terms of the grant to his predecessor Van Rensselaer, or by implication, has acquired title to the bed of the stream at the locality of the dam, is quite fully and satisfactorily discussed by the trial judge in the opinion* delivered! by him in deciding the case and need not he further discussed here. We find no good reason for differing from him in his conclusion *116that the defendant did not acquire the title, but that it remains in the People of the State.
The. defendant claims that he is protected by the action of the ' Commissioners of the Land Office of the State on the 2Sth of Janu- • ary, 1897. The resolution is not a deed or letters patent. It is 'hardly claimed to be such. The notice required to be given of an application for a grant (Laws of 1894, chap. 317, § 71) was evidently "■ not given, and this is said to be jurisdictional. (People v. Schermerhorn, 19 Barb. 558.) There were no recitals that such notice was igiven. The resolution contained a proviso that private rights and rights of property of individuals should not be impaired or impeded. It was found by the jury that the property of individuals was injured *117by the construction or maintenance of the dam. By subdivision 5 of section 70, chapter 317 of 1894, it was provided that the commissioners might authorize the- use of lands of the State under water for certain purposes, but did not include a case like the present, and inferentially restricted the commissioners from authorizing the use-except for the purposes therein stated. We are shown no statute that gives the commissioners authority to give a consent or license-like the one here given. It seems to have been given after the suit was commenced. It did not, we think, prevent the continuance of the action or operate as a defense. It did not estop the plaintiff from asserting its rights.
The fact that at present, in the changed condition of the stream, *118its use for commerce or navigation is insignificant, does not destroy the proprietary rights of the State or give the defendant the right to appropriate the stream and bed to "his individual use. (People v. Vanderbilt, 26 N. Y. 287.)
The judgment should be affirmed.
The situation upon the appeal from the order denying the motion tc amend the answer is substantially as follows: The case was tried in April, 1897, and the evidence then closed. Certain questions of fact were submitted to the jury, and all other questions were reserved *119for consideration of the court, it being agreed that argument should be had before the trial judge on the twenty-first of June following. By subsequent agreement the argument was postponed to the eighteenth of September, at which time it took place, and briefs were to be submitted to the court within ten days thereafter. On October first papers were served for a motion to be made at Special Term on the ninth of October for an order granting leave to defendant to serve an amended answer setting up the Statute of Limitations and title in defendant by prescription. In an affidavit by the *120defendant’s attorney it was stated that he did not become advised of the necessity of pleading the Statute of Limitations and title by prescription until after lii's examination of the evidence and authorities preparatory to the final submission of the case, and that he finds it necessary, to a proper and complete determination of the questions involved, that the defendant should plead the exclusive occupation and possession by the defendant and his grantors of the property upon which said dam is erected for the period of more than forty years under written claim of title. He also states, in substance, that such possession and occupation appears from the evidence, hut does *121not state how or from whom. On the part of the plaintiff it was in substance denied that the proof went to that extent. • The motion was not heard before the judge who tried the case. The motion,, according to the notice, was based upon the evidence given at the trial, and we may assume, from the argument of the counsel on the appeal, that the evidence was in fact used on the hearing of the motion. It was not claimed by the defendant that he desired to give any further evidence. In the affidavit of the defendant’s attorney it is stated that no further additional proof on the part of either party can be offered. On the part of the plaintiff it was stated that further proof might be necessary.
There was certainly great delay on the part of the defendant, and not much excuse shown for it. There is no affidavit by the-defendant.
In view of the delay and the absence of any claim by defendant of the existence of any other evidence it was certainly incumbent upon the defendant to show very clearly to the Special Term that there was in the case evidence from which the Trial Term would be authorized to find an adverse possession by the defendant or his grantors for forty years prior to the commencement of the action. This he did not do. The action would not be barred unless that was shown. (People v. Arnold, 4 N. Y. 508; Matter of Comrs. State Reservation, 37 Hun, 537, 548; Gould Waters [2d ed.], § 334.) In the case last cited, Judge Bjradley, speaking for the court in regard to a claim of a prescriptive right to maintain a dam and use the water, says (pp. 548, 549): “ To constitute such bar and right it is necessary that the use be enjoyed under a claim of right or adversely, and that it be notorious, continuous and uninterrupted for the requisite time. (2 Wash. Real Prop. [4th ed.] 322, 326; Colvin v. Burnet, 17 Wend, 564; People v. Arnold, 4 N. Y. 508 ; Miller v. Garlock, 8 Barb. 153.) * * * The use and enjoyment requisite to support the prescriptive right claimed relates as well to the use or diversion of the water as to the continuance of the dam. (Stiles v. Hooker, 7 Cow. 266.) The right to the usufruct of the water (except for purposes of navigation) is proprietary, and that of the State is paramount. (Gould v. H. R. R. R. Co., 6 N. Y. 522; Crill v. Rome, 47 How. 398, and cases there cited.) And. *122although the riparian owner may, as such, use water of the river and has rights in that respect which cannot be impaired by individuals, such rights are subordinate to that of the State, and as against the latter he cannot appropriate them to his use. (People v. Tibbetts, 19 N. Y. 523.) While the right to maintain the dam upon ■the bed depends upon the requisite uninterrupted continuance of it ■at the place where located, the 'right to use the water of the river is dependent on the like continuous diversion of it.”
From an examination of the evidence in the case before us, it is •quite apparent that there is no evidence from which the trial court would have a right to find a continuous adverse possession of the water or bed of the stream for the requisite time. There was evidence that some fifty years ago there was a dam located near where the present one is, but it only remained a few years. There is no •evidence that a dam was maintained continuously for forty years. The present dam was built only a short time before the commencement of the action.
The motion was, we think, properly denied.
It is claimed by the defendant that the order granting an extra ■allowance is not justified by the proof as to “ the value of the subject-matter involved.” (Code Civ. Proc. § 3253.)
We are of the opinion that the subject-matter of the litigation is ■the right of the State to have the waters of the Mohawk river flow free and unobstructed. There is no proof of the value of that right, and, therefore, no basis for the extra allowance, and none should be ■allowed.
All concurred.
Judgment and order denying motion to set aside verdict affirmed, with costs.
Order denying motion to amend answer affirmed, with ten dollars ■costs and disbursements.
Order granting motion for extra allowance reversed, with ten •dollars costs and disbursements, and motion denied.
The following is the opinion of Edwards, J., at the Albany Trial Term : Edwards, J.:
This action is brought to compel the removal of a dam across the southerly sprout of the Mohawk river at Cohoes, which dam was erected in the year 1898 by the defendant, who is the owner of adjacent lands.
The question for determination is, whether or not the State is the owner of the bed of the Mohawk river at the place in controversy. The learned counsel, in elaborate briefs, have discussed this as an original question. While I have carefully considered it as such and have examined authorities cited, I am of opinion that it is the settled law of this State that the Mohawk is a navigable river and. the title to the bed thereof is in the People of the State. In The People ex rel. Loomis v. The Canal Appraisers (33 N. Y. 461) that doctrine was distinctly affirmed, by Judge Davies in a learned opinion, after an exhaustive examination of the authorities. The concurrence in his opinion was unanimous. In that case the relator’s title came to him from a patent granted to the Herkimers, in which the boundary on the river is described as follows: “ Thence north 60 degrees west to-the said Mohawk river : thence down the stream thereof as it runs to the place where the tract began.” It was there contended on the part of the relator that the patentees, by virtue of their patent, acquired title to the center of the river. Judge Davies says, “his boundary extending to the said river, and thence down, the stream thereof, would necessarily carry him to the thread of the stream, unless, the river be of that character which constitutes the State the owner of the bed thereof.” The court there held that the Mohawk is a navigable river to which the doctrine of the civil law is applicable, and that grants to riparian owners did not convey the bed of the stream, hut that the title thereof is in the People. In Crill v. The City of Rome (47 How. Pr. 398) Mr. Justice Hardin, referring to that case, says, “such is the doctrine established by the court of last resort in this State-, and the same is not open for cavil or discussion in this court.” The case of Smith v. City of Rochester (93 N. Y. 463), cited by defendant’s counsel as in conflict with the doctrine of The People ex rel. Loomis v. The Canal Appraisers (supra), affirms the doctrine of that case in respect to the Hudson and Mohawk rivers. Chief Judge Huger, writing the opinion of the court, says (p. 483): “ Undoubtedly the leading case on that side in our courts is The People v. Canal App. (33 N. Y. 461), in which the late Judge Davies delivered a learned and elaborate opinion. The headnote shows precisely the questions there involved and the *116extent of the doctrine announced: ‘ The Mohawk river is a navigable stream, ■and the title to the bed of the river is in the People of the State. Riparian ■otvners along the stream are not entitled to damages for any diversion or use of the waters of the Mohawk by the State.’ * * * We think this and similar cases might properly have been decided for reasons peculiar to the Mohawk and Hudson rivers upon the grounds stated in the Commissioners v. Kempshall (supra), by Senator Verplanck and by the chancellor and Senator Beardsley in Canal Appraisers v. People (17 Wend. 573). The titles granted to the original settlers in the Hudson and Mohawk valleys, as construed by the rules of the civil law prevailing in the Netherlands, .from whose government they were derived, did not convey to their riparian owners the banks or beds of navigable streams. Upon the surrender of this territory the guaranty assured by the English authorities to its inhabitants of the peaceable enjoyment of their possessions simply confirmed the right already possessed, and the beds of navigable streams, never having been conveyed, became, by virtue of the right of eminent domain, vested in the English government as ungranted lands, and the State of New York, as a consequence of the Revolution, succeeded to the rights of the mother country.
“As to the lands under these rivers, the People of this State have, from the earliest times, asserted their title, however acquired, and have assumed to grant and convey them like other unappropriated lands belonging to the State. (3 Greenl. Laws, 13 [Dec. 1793]; Palmer v. Mulligan, 3 Caines, 308.) It is stated in People v. Canal Appraisers (supra) that when the possession of these waters •subsequently became necessary to the State for the purposes of navigation, they re-acquired the rights formerly granted by them from the Western Inland Navigation Company by purchase, and they then appropriated them by virtue of their original proprietorship. We think the authority of these cases should he confined to the waters of the Hudson and •Mohaw'k rivers, rights in which were alone necessarily involved in their determination.”
In Matter of Commissioners of the State Reservation (37 Hun, 537), Mr. Justice "Bradley says (p. 546): “ Whether the common-law qualification is applicable to ithe large rivers in this country has had some consideration by the courts of this *117State, and produced diverse views in the opinions of jurists. And the conclusion has been reached that the Hudson, beyond tidal influence, and the Mohawk, are navigable, and the State has title to, and jurisdiction over them, as effectually as those where tide ebbs and flows. (The Canal Appraisers v. The People ex rel. Tibbits, 17 Wend. 571; People v. Canal Appraisers, 33 N. Y. 461.) * * * And in the later case of Smith v. Rochester (92 N. Y. 463) the views expressed in the opinion delivered were to the effect that. * * * and that the Hudson above tidal influence, and the Mohawk, are distinguished from other fresh water rivers by reference to the fact that the early and original settlers along those rivers derived their titles from Holland where the civil law prevailed.”
I think, therefore, it must be regarded as settled that the doctrine of the civil law is applicable to the Hudson and the Mohawk rivers; that the Mohawk is, in law, a navigable river, and that the title to the bed thereof is in the People of the State. That the Mohawk, at the particular place in controversy, is not in fact navigable, does not change or affect, its general legal character as a navigable river and take it out of this doctrine. A river navigable in law does not change its legal character because at particular localities it is, in fact, non-navigable. (Matter of State Reservation, 16 Abb. N. C. 187; affd., 37 Hun, 537.)
The defendant, therefore, as riparian owner, has no title by implication to the bed of the river, and I think the terms of the grant to his predecessor, under which he claims, do not convey the land under water. It is alleged in the answer that the source of the defendant’s title is a grant made by Thomas Dongan, Colonial Governor, to Killian Van Rensselaer, dated November 4, 1685. This, confirmatory patent reads as follows: “All that and those tract and tracts of land called Ransselaerswyck lyeing- and being on and upon the banks of Hudsons river in the county of Albany in the province of New Yorlte aforesaid heretofore called or lcnowne by the name of the colony of Ranslaerswyck, begining att the south end or parte of Berrent Island on Hudsons river and extending northwards up along both sides of the said Hudsons river into a place heretofore called the Kahoos or the Great falls of the said river & extending- it selfe east and west all along from each side of the said river backwards into the woods twenty-fouer English *118miles * * * with all and singular the rights, members and appurtenances of the said tract and tracts of land and of every of them, and all and singular the messuages, lands, tenemts., howses, mills, plant-aeons, buildings, orchards, gardens meadow pastures feedings comons woods underwoods rents arrearages of rent services waifts estray royaltyes libertyes privilidges jurisdiccons hereditaments and all other the rights members and appurtenances whatsoever to all and every the said tract and tracts of lan & premissess belonging and appurtineing or accepted, reputed, taken, knowne or occupied as parte, parcell or member thereof, togather with all and every the isles, islands, rivers, creeks, runns of waters, mines, mineralls (royll. mines excepted), fishings, fowlings, huntings, hawkings and all other royaltyes, powers, fEranchises, harbours, preffitts, comodityes and haeriditaments whatsoever to the said premissess or any parte thereof belonging or appertaineing.” This grant must be construed in the light of the doctrine of the civil law and on the principle that every intendment is to be made in favor of the State. It will be observed that the tracts of land conveyed, were those “lyeing and being on and upon the banks of Hudsons river.” This branch of the Mohawk was undoubtedly supposed at that time to be a part of the Hudson river. The bed of the river was not in express terms conveyed; nor was it within any lands described by metes and bounds. The general clause, “together with all and every the * * * rivers, creeks, runns of water,” is insufficient to convey the lands under the waters of the river. It is apparent that this was the view of the court, although not adjudicated when the construction of the terms of the patent was considered in The Canal Commissioners v. The People ex rel. Tibbits (5 Wend. 423). The confirmatory patent there before the court was the one dated May 30, 1704, from Queen Anne to Killian Van Rensselaer, introduced in evidence in this action, which is confirmatory of the Dongan patent and contains the same description of the premises conveyed, except that the language there is given as “lying and being in and upon the banks of Hudson’s river.” “ The word ‘in’ has probably been substituted for ‘ on.’ ” (Canal Appraisers v. The People ex rel. Tibbits, 17 Wend. 608.) The chancellor, writing the minority opinion, there says, “the lands lying under the waters of the river are not granted as such in express terms, and, therefore, by the rules of the common law that part which was actually covered by the tide waters did not pass by this grant.” Senator Beardsdey, writing the opinion in which the majority concurred, quoting the language of the boundaries of the patent, says: “It was *119admitted on the argument that the grant did not include the bed of the river, and the expression ‘in and upon the banks of the Hudson river’ means nothing more than in the vicinity or upon the Hudson river. But the subsequent terms of description, ‘ extending northward up along both sides of said river,' render it not only probable but quite certain that the bed of the river was not intended to be included.” He further says : “As a general remark, it will be found correct, that the colonial government as well as the present government of this State in granting lands on navigable fresh water rivers, and in many instances those not navigable, have studiously avoided granting the river itself, or the bed of the river, probably anticipating that they might be wanted for public purposes, * ** The result of my reflections is, that where patents have been bounded on navigable fresh water rivers in this State, and nothing appears from the grant that the State intended to part with the bed of the river, the patentee shall not, by an implied grant, take the river to the exclusion of the State. For this reason, as well as that the relator has not shown an actual possession, or that the middle sprout was within the bounds of the manor as located, I am for reversing the order of the Supreme Court.”
When that case was again before the Supreme Court (The People ex rel. Tibbits v. Canal Appraisers, 13 Wend. 355) the relator claimed to be the owner of the middle sprout, by virtue of a conveyance of the lands under the waters of the sprout. To support his claim, he read in evidence the confirmatory patent of Queen Anne to Killian Van Rensselaer, dated May 30, 1704, and introduced testimony to show a practical or actual location under that grant. The decision of the court in favor of the relator was not based upon his ownership of the bed of the sprout by reason of any express terms of the grant, but upon the principle of the common law that grants of land, bounded upon rivers or streams where the tide does not ebb or flow, carry the right of the grantee to the middle of the stream. When that case was again before the Court of Errors (Canal Appraisers v. The People ex rel. Tibbits, 17 Wend. 571) the claim was again made by him that the descriptive words of the patent expressly include the bed of the sprout. Although the court did not adjudicate that question, I think it quite apparent that the members did not entertain that view of the terms of the grant. But the defendant’s counsel contend that, assuming the State to have title to the bed of this southerly sprout of the river, the consent of the Commissioners of the Land Office, given *120January 28, 1897, to maintain the dam as now constructed, is a defense to this action. The introduction into evidence of this consent on the trial was objected to by the plaintiff’s counsel, and, as I was not then free from doubt as to its admissibility, it was received in evidence. On examination of the question, I am quite clear that the consent conferred no power on the defendant to erect or to maintain the dam in question. The consent is in the form of a resolution, adopted by the Commissioners of the Land Office on the ex parte application of the defendant. A right to erect and maintain a dam is a transfer of an interest in land and must be by deed. The Commissioners of the Land Office have no power, except such as is conferred upon them by statute, to transfer any interest in the lands of the State. The manner in which they may grant lands under - water is prescribed by the statutes of this State, and must be strictly followed. The statute provides that “ Every applicant for a grant of land under water shall, previous to his application, cause notice thereof to be published at least once a week for six weeks successively in a newspaper printed in the county in which the land so intended to be applied for is situated; and a copy of such notice to be posted for the same period upon the door of the court-house of such county, and if there be no court-house in the county, at such place as the commissioners direct.” (§ 71, Public Lands Law, 1 E. S. [9th ed.] 409.) Such notice is necessary to confer jurisdiction on the Commissioners and -without it any grant by them is void. (The People v. Schermerhorn, 19 Barb. 558.) In this case there was an entire omission to give any notice, and I am of opinion that the consent of the Commissioners to maintain t-lie dam was without authority.
Furthermore, the said consent contained the following clause: "Provided furthermore, that private rights and rights of property of individuals, if any, of every nature and description, shall not be taken away, impaired or impeded.” I think that this proviso constituted a condition of the consent, and as this condition has been violated, as found by the jury, which finding I adopt, the consent, if it ever had any validity, is not a defense.
Having arrived at the conclusion that the title to the bed of the river, on which the defendant’s dam is erected, is in the People of the State, and that such dam was erected without authority, it follows that the erection and maintenance of the same is a purpresture and per se a public nuisance and should be abated. (The People v. Vanderbilt, 26 N. Y. 287.)