At the time of the original patent, 1764, and for many years before, Wood creek was used as a passageway for canoes and like craft from Lake Champlain to the Hudson river. This included a . carry from near Fort Ann to Fort Edward, about eleven miles. Within the knowledge of men now living, the creek has not been used for any such purpose, and is an ordinary creek from seven to fifteen feet wide, from six inches to' two or three feet deep, the water of which runs within banks two or three feet in height, and it has not been used as a public highway or for boating.
The patent, in terms, includes and conveys Wood creek, and there would be no doubt that the title was in the grantee except for the reservation, which • provides “ excepting the said Wood Creek, which is reserved as a common highway for the benefit of the public,” and later in the patent it is recited that it grants unto the patentee the premises before described, and every part and parcel thereof, except, it reserved out of said grant to the King, his heirs and successors, the mines and minerals, “And also except Wood Creek for the uses above mentioned.” I think the latter clause makes emphatic the extent of the reservation, and shows that the clear intention of the parties was that the use of Wood creek was reserved for'the purposes.mentioned, and that the title to the bed of the creek was not reserved, but it passed to the patentee subject to the right of the public to use the creek as a common highway. And this right to use the creek must be interpreted with reference to the use theretofore and then existing,, and cannot justify the filling up and annihilation of Wood creek, the turning of the waters thereof into a canal which is supplied with water from other sources, and is seventy-five feet in width, twelve feet in depth and intended for the accommodation of boats and barges propelled by steam. This latter is a use which never was intended, and the volume of water flowing through the new canal *101is so out of proportion to that of the little stream winding through the land that it cannot be justified by reason of the burden cast upon the land by the reservation, but is appropriating the land for another and distinct use. The creek itself was very crooked; the canal is straight; and at the place in question the original creek was made a spoil bank and filled with excavations from the canal, and is about seventy-five feet distant from the canal itself. The building of the canal cannot be fairly considered an improvement of the original waterway within the terms of the reservation, but is a separate, distinct appropriation of land for canal purposes. I think that under the terms of the patent the bed of Wood creek became a part of the grant and passed to the patentee, subject to the burden of the public use in substantially the manner that it had been theretofore and was then used. We need not say that the substitution of steam and motor boats in place of the canoe would interfere with the rights of the public in using the creek as a common highway provided it could properly be excavated within about the fair limits of the creek as it formerly was. I think, therefore, the claimant had the right to build the bridge or trestle across Wood creek.
The State very properly did not assume to exercise the rights which it is there exercising on the theory that it was improving Wood creek, but proceeded upon the theory of a separate condemnation of the land for canal purposes, which course "was the only one available to it, and its acts can be justified on ho other basis.
The relator, therefore, by the condemnation is substantially deprived of the use of the bridge and trestle, and is entitled to such reasonable damage as it has fairly sustained thereby.
After the State had taken the steps preliminary to a condemnation of the property for the barge canal, and had marked out the line of the canal preparatory to the condemnation, which action was authorized by the statute enacted shortly before that time, the respondent takes a lease of an unused quarry and, in advance of the actual condemnation, builds the bridge and trestle and begins to work the quarry. The findings show facts fairly charging it with knowledge that the barge canal would run between the quarry that it was leasing and the railroad track. Notwithstanding -this *102knowledge it took the lease and built the trestle. It has suffered no loss that was not directly in view when it took the lease and constructed the trestle, and its lease and improvements were entered •upon subject to the work which it knew was 'imminent. An injury does not come tO the willing, and the relator is losing nothing by the barge canal, the loss of which was not fully known and discounted in advance, and it has voluntarily assumed the position in which it finds itself. The Court of Claims has awarded it $1,000 damages for an interference with its rights. Its right of way on either side of Wood creek has been interfered with and I think the award ample. I, therefore, concur in the result.
Judgment unanimously affirmed, with costs.