I concur with Mr. Justice Merrell that if the Mohawk river bed is included in the Cosby Manor grant, the city of Utica acquired no title thereto from the State; but I am of the opinion *170that.under the rule of law as declared by the Court of Appeals in the case of People ex rel. Loomis v. Canal Appraisers (33 N. Y. 461), peculiarly applicable to the Hudson and Mohawk rivers, the language contained in the letters patent is not sufficiently specific to cover the title to the bed of the river. While that decision has been many times referred to I am not aware that the decision or the learned and exhaustive opinion has ever been questioned. No such distinction as is now sought to be made between a Dutch grant founded upon the civil law and an English grant founded upon the common law is therein made. Indeed, it is very apparent from a reading of the opinion that if the common law of England had been strictly adhered to the decision would not have been made in favor of the State. It is therein expressly declared that the common law of England was only adopted in our State so far as it was applicable to our conditions.
While I might reach a different conclusion if the question were an open one, it seems to me that the Loomis case is controlling. I, therefore, vote for affirmance.
Robson, J., concurred.
Judgment reversed and judgment directed in favor of the plaintiff, with costs in this court and the court below to the plaintiff. The findings of fact numbered H to IX inclusive, as found by the trial court, are disapproved and stricken out and in place thereof findings are made by this court substantially conforming to those contained in plaintiff’s proposed decision numbered from 1 to 9 inclusive. Order to be settled before Mr. Justice Merrell on two days’ notice.