My conclusions in this case, briefly stated, are as follows:
First. The appropriation for which compensation is asked was not of the stone quarry but of the right of way to the Delaware and Hudson railroad, involving the destruction of certain structures thereupon. The right of way from the quarry to the Delaware and Hudson railroad crosses Wood creek, about fifteen feet in width, by a bridge, which in no way has interfered with the navigation of Wood creek; in fact navigation upon Wood creek has been long abandoned. The gravity road upon this right of way is deemed of great value, without which the stone could not be marketed at any substantial profit. The barge canal is to be seventy-five feet in width. Even if permitted by the State to bridge the canal the cost *97would be prohibitive. So that if the State is liable for this injury to’ claimant the damage is substantial.
But Wood creek is a public highway. By the “ Artillery Patent,” through which plaintiff claims, these lands were conveyed, “ excepting the said Wood Creek, which is reserved as a common highway for- the benefit of the public.”
Assume first for the argument that the State has only an easement for a public highway in Wood creek.
There can be no claim for land taken, as that claim belongs to the owner or lessor. The major item of damage claimed is for making impracticable this gravity road by widening of the public waterway, so. that it cannot be economically bridged. For this I am clear the claimant has no remedy. That the State has the right to improve its highways and deepen or widen its public streams is within recognized authority. In Lewis on Eminent Domain (§§ 69, 71) it is held that the rights of riparian proprietors upon navigable streams were subject to the paramount right of the public to use and improve the stream as such highway, and subject also to the right of the public to improve the stream for 'navigation. In Mills on Eminent Domain (2d ed. § 80) it is held that navigable rivers may be altered, deepened and their channels changed, and damages resulting from such an improvement are not properly the subject of compensation. The public have a right to make use of the river as a natural highway, and if the riparian owner is injured by such use he is without remedy. In Nichols on Eminent Domain (§ 166) it is held-that the public right of navigation is paramount upon a private navigable stream, and is always subject to the servitude of navigation by the public and to the right of the government to construct works therein in aid of navigation. If this stream had at all times been so shallow that the claimant’s teams could have forded it with loads the State clearly could have improved and deepened it without compensating the claimant for the extra expense necessitated for bridging or ferrying. So, also, the State may improve and widen the stream without compensation for the extra expense caused the claimant in crossing. . No adjoining owner has a vested right in a public stream as he finds it. His rights are always subject to the right of the State to improve the stream for navigation.
*98It is insisted by the claimant, however, that this is not an improvement of Wood creek, but-a construction, of a new artificial water highway, the control of which is entirely reserved to the State. That this barge canal is a public highway is unquestioned. In its construction through the territory in question it follows the general line of Wood creek, which has for many years been a public highway. It cannot matter that in order to straighten this highway the bed of the canal does not always follow the bed of Wood creek. If it had followed the exact windings of Wood creek,, there could then have been no question that it was an adoption and improvement of a highway already existing. , Its right to the construction and improvement of a water highway along the general line of the creek, however, is not in any way impaired by such deviations' as are necessary to straighten and improve the highway.
Again, claimant insists that this is not the improvement of a navigable stream, because it is an artificial waterway under control of the State, in which the adjoining landowners have not the.rights they possess in a navigable stream. But no damage is claimed for the depriving of claimant of any rights to navigation. The barge canal, is a public waterway. The fact that the use' thereof is under special regulation does not after the nature of the improvement or make it any the less such a public improvement as is within the authority of the State to make.'
As to the claimed injui-y by making impracticable the gravity road, the good or bad faitldof'the claimant is probably not material. This gravity road is a valuable adjunct to the property itself, and it cannot matter to the State whether,payment therefor, if liable, be made to the lessor or lessee.
Second. Again, upon the assumption that the State only has a right of way in Wood creek, the claimant had the clear right to construct its right of way and bridge it, provided it did not. impair its, usefulness as a public highway. (Chenango Bridge Co. v. Page, 83 N. Y. 185.) Whether or not- the bridge has yet been taken down the plan of the State involves its destruction and the destruction of part of the roadbed, for which the claimant is entitled to damages if the structures were placed thereon in good faith. If, however, the structures were placed upon the premises in bad faith for the purpose of enlarging its own claims and enhancing the *99State’s damages, claimant merits no compensation. But there is no finding of bad faith. The lessee undoubtedly knew where was the contemplated line of the new canal, but that alone is not sufficient to defeat their claims for damages. (Forster v. Scott, 136 N. Y. 577; Matter of Mayor, 24 App. Div. 7,10.) Bad faith mast be found as a fact.
Upon the assumption, therefore, that the State has only a right of way in Wood creek the judgment would have to be reversed and a new trial ordered that the court may assess the claimant’s damage for the destruction of the structures constituting the bridge and its approaches.
Third. In this discussion so far I have assumed for the argument that the State only has an easement in Woód creek for the use of the public. If the State owns the bed of the stream a different question is presented.- In that case no adjoining proprietor has the right to bridge the stream without legislative permission. (Fort Plain Bridge Co. v. Smith, 30 N. Y. 44.) No such permission has ever been given either the claimant.or its lessor. The bridging of the creek without such permission was a trespass, and the State is not liable to compensate the claimant either for the bridge destroyed or for the destruction of the roadway constituting the approaches to the bridge. It may be where piers and docks are built by adjoining proprietors to facilitate access to a navigable stream that their destruction even for the improvement of the stream entitles the owners to compensation. But these structures were not built to facilitate access to 'the stream. They were built to cross the stream without the required permission, and for their destruction in the making of this public improvement the claimant has no equitable claim for compensation.
Fourth. That the State does' own the bed of the stream seems to me the necessary construction of the “ Artillery Patent.” From the lands granted by that patent Wood creek has been explicitly excepted. It cannot matter for what purpose the exception is made. It is here agreed that the State now owns whatever did not pass by the “ Artillery Patent.” In Lewis Blue Point Oyster C. Co. v. Briggs (198 N. Y. 287) it is held: “In patents from a sovereign to subject the rule of construction which controls deeds between individuals is reversed and the terms are taken most strongly against *100the grantee, because' the public interest is involved.” Under this rule of construction it can hardly be doubted that under this patent the title to the bed of Wood creek remains in the State.
The judgment should, therefore, be affirmed, with costs.
All concurred; Kellogg, J., in memorandum.