I cannot agree that the plaintiff had no legal interest in the falls, the dam and water power. It is true that the words “ excepting the said Wood Creek which is reserved as a common highway for the benefit of the publick,” and the words “ Except Wood Creek as aforesaid, for a common and publick highway ” in the Artillery patent are an exception and not a reservation and that the title to the bed of the creek did not pass thereby. (Champlain Stone & Sand Co. v. State of New York, 142 App. Div. 94; affd., 205 N. Y. 539.)
In Johnson v. State of New York (151 App. Div. 361) we applied that decision to this Skeeneborough patent. In those cases the interpretation of these clauses rested solely upon the patent itself and the fact that Wood creek flowed through the forest and was used as a common highway for the passage of canoes and rowboats.
Here the circumstances leading up to the patent and under which it was issued indicate clearly what the words forming the exception meant to the parties to it, with reference' to the falls, the water power, the dam and the bottom of the creek upon which it rested. Mere words in themselves have but little meaning; it is the circumstances under which they are used and the subject to which they refer that give them real meaning and force. An expression must be construed with reference to the time and the circumstances of its use.
Major Skene, encouraged by Sir Jeffrey Amherst, commander-in-chief of His Majesty’s forces in America, in 1760 undertook the establishment of a settlement at Wood creek, near the falls, and at great expense settled and maintained about thirty families there. During his absence on the expedition against Martinique and Havana all of them except fifteen abandoned the settlement. Upon his return in 1763 he memorialized the Crown to grant him a patent of the settle*214ment and surrounding lands, stating the efforts he had made and, among other things, that he had established a sawmill at the falls. He entered into a bond conditioned that he would settle thirty families upon the premises within three years. The patent was granted, and in describing the lands refers to the sawmill built by him near the falls. He made the settlement as agreed. In attempting to establish a settlement in the wilderness a sawmill was a most important consideration, for without it lumber could not be obtained for building houses and accommodations for the people. In interpreting the grant with reference to the falls, the water power and the dam, the question is, Did the Crown intend to reserve' the title to them in itself or to grant it to Skene ? Did it mean to except from the grant the very foundation of the settlement, the only thing which made possible the success of the enterprise ?
At the time of the patent, the falls in the creek and the water power and dam were very important for two reasons: (1) They obstructed the navigation of the creek so that the canoes and rowboats from Lake Champlain could only get into the creek by being carried around the falls. The falls had for all times preceding formed such an obstruction. The highway at the falls was not over the falls but was the “ carry ” around them. While the falls made it necessary to carry the canoes and boats around them, the dam at the falls was a benefit to the navigation above, as it backed up the water in the shallow stream. (2) They gave power to the sawmill and the sawmill made possible the settlement, and the establishment of a settlement was the reason which impelled the King to grant the patent. We, therefore, have the falls, the dam, the water power and the mill as the things which • made the success of the settlement possible. When the patent is laid upon the ground it fits well around them, and gives life and meaning to the grant and the exceptions with reference to Wood creek. The falls are at the point, or just above the point, where Wood creek flows into Lake Champlain. The ‘1 Wood creek ” which was excepted from the patent for the purposes of a public highway, evidently was the creek above the falls which was used and was useful for navigation, and not the part used by Skene in forwarding the enterprise which was the *215consideration of the patent and for which he desired it. The King desired Skene to use the water power and the falls just as they were used at the time, and desired the public to make the same use of the creek it was then having. It was not in the mind of any one at that time that the place where the falls and dam were might possibly be used in navigation or as a part of a public highway. It is not necessary here to determine that the patent carried with it the bed of Wood creek at the falls and dam; it is manifest that it carried with it the right to maintain a dam at the falls and to use the waters of the creek at that place for mill purposes in connection with the settlement. In any event it must be conceded that the situation was such that at least it presented reasonable grounds for the contention that the bed of Wood creek at the falls and the water power and dam were actually conveyed. Apparently it was not fair that the Crown should reserve from the patent the only thing which would enable the patentee to make a success' of the enterprise and to protect the surety on his bond. That the “ Wood creek” excepted in the patent does not include the dam and the falls is evident by the subsequent acts of the Legislature declaring the part of Wood creek above the falls navigable waters. The designation of the part of the creek above the falls indicates that the dam, the falls and the part of the creek below were not a public highway. Perhaps, because it was not then deemed possible that there could be an actual navigation, and perhaps it was considered that the State had already conveyed away that part of the creek.
After Major Skene was attainted of treason the Commissioner of Forfeiture proceeded to sell the forfeited lands. After the most of them had been sold, he reported to Governor Clinton a description of the unspld lands with an estimate of their value, among which we find “Lot No. 23, 500 acres, with falls, equity of redemption, value supposed to be 6,000 pounds,” also “ Lot No. 24,171 acres adjoining the falls, 400 pounds. ” Thereafter the 500 acres and the falls (a lot described as containing 8 acres) were sold to the predecessors in title of the plaintiff for 2,750 pounds. The sale indicates that the Commissioner estimated the property at about double its actual value. The 170 acres next adjoining the 500 acres upon the creek above *216the falls, which he valued at 400 pounds, so far as appears, had no element affecting its value which made it less desirable than the 500-acre parcel without the falls. We must, therefore, assume that the 8 acres, including the falls, dam and water power, represented the principal part of the purchase price, and that the State of New York actually received from the plaintiffs’ grantor, on account of them, from $8,000 to $10,000. There were at least good and substantial reasons why the falls, the dam and water power should have been included in the patent, and why the patentee might well claim that they were. After the State had sold the land to the plaintiffs’ predecessor in title chapter 52 of the Laws of 1797 was passed. It recited that the title deeds and other documents relating to forfeited estates were generally carried away by the former proprietors, whose conduct caused their forfeiture, and that the title of the State, as resulted from such forfeitures, is thereby peculiarly liable to be obscured or defeated. Therefore, it enacted that no person or persons, bodies politic or corporate, who shall have any estate, right or claim in any of the lands “ supposed to have been forfeited,” and which have been heretofore granted by the Commissioner of Forfeitures, shall after five years prosecute any action for recovery against the right or title so granted by the State.
It is clear that the Commissioner of Forfeiture and the purchaser from him “ supposed ” that the falls, dam and water power were forfeited, and on account of such supposition the Commissioner exacted, and the purchaser paid, the State $8,000 or $10,000 for a conveyance of them. We cannot say what deeds and documents relating to this property may have been carried away by Major Skene. Under such circumstances, when the purchaser and his successors in title have been in possession ever since, using the falls and dam and water power for mill purposes without any practical interruption, the State is not in a position to claim that the purchaser did not acquire the title. The claim now made that the Commissioner had no authority to deed the falls is purely technical, and the State cannot be heard in making such a claim so long as it retains the money which it received for them. It is to be observed that the conveyance of the falls, carrying with it the dam and waterpower, *217did not and could not interfere with the navigation of the river as it then existed and as the future seemed to indicate such navigation might continue.
Tf we were dealing with a large river capable of navigation, as we understand the term, and not 'with a little creek about ten to twenty feet wide, and perhaps from six inches to three feet deep in places, we might say that a grant of the creek was subject to a right of the public to navigate it, and that, therefore, the plaintiff would not have an absolute unqualified title to the falls and the place where his dam had stood for so many years. But if we assume that the same rule applies to this little stream the plaintiffs’ situation is not materially changed. They at least acquired the right to use the falls and water power and maintain their dam for the purposes for which they were using them; subject, however, to the right of the State to use the creek as a public highway. This did not authorize the State to divert the waters from the creek or to destroy the dam. The canal itself, which now forms the public highway at this place, does-not go through the creek, the dam or the falls, but alongside of them, substantially replacing for the purpose of navigation the old “ carry.” Their ' destruction was not necessary for the purpose of navigating the creek, but resulted from the fact that the State deemed it desirable to erect a new dam in place of the old one for water storage and as a convenience.
We have considered the various elements going to make up the right of the plaintiffs to maintain a dam at this place. It is unnecessary to determine, and we will not determine, the exact nature of plaintiffs’ rights. It is sufficient to say that they had a right to maintain a dam there and use the water for their power purposes.
Up to the time the action was brought the State had done no act in derogation of the plaintiffs’ rights. It destroyed ■ their dam and water power but erected a larger dam and gave them a better water power. This was done with their consent, although they protested against the actual work which had been invited by them, in order to save their legal rights. Undoubtedly the persons who were representing the State when the plaintiffs consented to a change of the plan of the *218canal which involved a destruction of the old dam and the building of a better one which would furnish a better head, were not acting with such an authority that they could bind the State thereby. But apparently the State has ratified their acts and has built the new dam and furnished the water power as suggested. If it were not for a subsequent condemnation of the dam site it would seem clear that the plaintiffs have suffered no harm. It is urged that their property interest in the dam is destroyed, and that while having a present use of the water they may be deprived of that use at any time. Upon consideration it seems that this suggestion is without force. It is known to be the policy of the State to rebuild bridges to take the place of those destroyed in the making of the canal; where a water power is interfered with, to replace it as far as practicable. The barge canal is not a temporary structure but represents the permanent and fixed policy of the State. The dam and the structures furnishing water to the plaintiffs’ mill are not temporary arrangements but are intended to cover the future, and are in fact a continuation of the rights which the plaintiffs have always had to use the water of the creek for power purposes. Undoubtedly the map filed and served by the State appropriating the lands and plaintiffs’ riparian rights must be construed with reference to the fact that the State at the time was making a permanent arrangement by which the plaintiffs should continue to receive from the canal a water power equal to or greater than that which the creek had furnished. The plaintiffs’ damages for the appropriation would have been assessed upon that basis. The rights the plaintiffs now enjoy were not conferred upon them by the State when it was building the barge canal, but are the rights which were acquired by Major Skene and by the conveyance from the Commissioner of Forfeiture and their continued use. The condemnation by the State changed somewhat the form and manner of their use, but not to the plaintiffs’ detriment. The • present rights are in continuation of and in substitution for the rights which the plaintiffs always had. They may, therefore, demand as of right the continuance of the power now furnished them. I favor an affirmance upon the ground, not that the plaintiffs had no right in the dam and water power *219destroyed, but upon the ground that nothing of substance has been taken from them, and they have suffered no loss.
Lyon, J., concurred.
Judgment reversed on law and facts, .with costs, and complaint dismissed, with costs.
The findings of fact of which the court disapproves are those numbered 8, 10, 11, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 25, 26, 27, 28, 29, 81, 33, 34.
In addition to the findings of fact made by the trial court of which this court approves this Court adopts as further findings of fact the defendant’s requests to find as indicated in the record and numbered 14, 15, 16, 18, 19, 22, 24, 27, 31, 33, 35, 36, 37, 38, 40, 41.