Nonuser alone, of an easement created by grant, does not make an abandonment of it, but here there is more than a nonuser. The rights now claimed by plaintiff were actually destroyed thirty-seven years ago by the appropriation thereof by others without objection by the plaintiff who knew all the facts.
Lower Bear race, which we are interested in, was a channel carrying water to a mill, and was in use more than one hundred years ago. The mill fell into disuse and decay, and disappeared prior "to 1879, and the race fell into disuse, its walls fell in, and in that year a bulkhead was built across it, above Washington street, preventing the water from flowing into the race below. Below Washington street a culvert crossed under the race, carrying the surface waters into Meadow creek, and about that time, and when the walls of the race were caving in, the top of the culvert fell in, with the result that any water leaking through the bulkhead into the race was discharged through the culvert into Meadow creek, so that since 1879 there was no water flowing through the lower Bear race, where we are interested in it, except surface water accumulating in the- depression which was formerly the race. In the early history of the stone bulkhead, in high water, the water at times flowed over it into the race; but apparently the mills above it required more water, with the result that by planking and other means the bulkhead was raised and thereafter no water escaped except such as leaked through it. We, therefore, find that in 1879 the ‘mills which the race was intended to supply with water had ceased to exist, the race which carried the water had disappeared, and a permanent bulkhead had been built by others for their benefit above Washington street which would have prevented any water from flowing into the race if it were in existence. These conditions continued until the building of the second bulkhead, which we are now to consider.
*347Chapter 325 of the Laws of 1888 and chapter 461 of the Laws of 1889- provided for the dredging and excavating of the old Bear race down to Washington street, provided the owners of the land should release to the State the use of the race for canal purposes only, subject to all their other rights in the water power, and the said channel, so excavated, became a part of the canal system of the State. Much litigation followed. Other water-power owners at Waterloo, who took water from the canal, contended that the legislation was invalid, and in the interest of the water-power owners in this race and not for the public benefit. The legislation, however, was sustained in Waterloo Woolen Mfg. Co. v. Shanahan (128 N. Y. 345) in 1891. That action was brought to restrain the contractor from proceeding with the work, and shortly after the decision, probably in 1892, the race was dredged and excavated to Washington street and the old bulkhead taken out and a new one built below the bridge at Washington street. The dredging was to give a greater depth of water above Washington street for the navigation of boats, and only the State and the water-power owners above the street were interested in having the level of water maintained at that place. The court found that the first bulkhead was removed and the second bulkhead constructed either by the State or other interested parties. No parties could be interested except the State and the millowners above the street. The State could not dredge and excavate the canal to Washington street without removing the first bulkhead and having removed it for the purpose of making the water navigable for boats, it was necessary for the State to have a bulkhead erected to maintain the proper water level for navigation. We, therefore, find that the State removed the first bulkhead. Having removed the first bulkhead, it was. ts interest, and. its duty towards the water-power owners, to replace it by a permanent structure to retain the waters for the canal system of the State. We, therefore, find that the second bulkhead was constructed by the State. That bulkhead was an absolute and permanent destruction by the State of Bear race below the bulkhead, if any vestige of it were in existence at the time. The State could not, after having removed the bulkhead belonging to the property *348owners, expect them to replace it, and as the race became a part of the canal system of the State, it could not allow the property owners to build and maintain a bulkhead upon which depended the navigation of a part of its canal system. The policy of the State is to build, own and maintain its own public works. If the plaintiff’s rights have been injured by the State, the injury was caused by it in 1892, if such rights were existing at that time. Any remedy plaintiff had for the destruction of its rights then arose, and should have been presented to and adjusted in the Court of Claims within the time required by law. The action of the Staté in 1913 in no way destroyed or interfered with any'right which the plaintiff then had, and the claimant cannot seize upon that act to relieve itself from the lapse of time which was a fatal bar to any claim against the State for interfering with its water rights. It was just as impossible for the plaintiff to have any use of the alleged water rights after 1892 as it was after 1913.
The plaintiff claims a right in the race by a conveyance to it in 1886. Each bulkhead was built and maintained either with the consent and acquiescence of the plaintiff and its predecessors in title, or as a hostile and adverse act. There is no suggestion that the plaintiff, or its predecessor, leased a right to build and maintain the bulkheads. The building and maintaining of the bulkheads was so destructive to all rights in the race below that silence upon the part of the lower owners implied an abandonment of their rights. If the bulkheads were built in" hostility to the rights of the plaintiff and its predecessor, an adverse holding would result. (Woodruff v. Paddock, 130 N. Y. 618.)
We are interested in the question whether the plaintiff, under all the circumstances, intended to abandon its rights in the race below Washington street. The law favors repose of titles and possessions. The Statute of Limitations does not rest upon the theory of depriving a person of his rights after a certain lapse of time, but upon the probability that after such lapse of time parties and witnesses to the transaction may be dead or absent; documents may be lost, or material facts forgotten, and that after such long acquiescence in the use of property there is a reasonable inference that *349the use was justified by the facts, if the dimness of time did not obscure the view. A grant is often presumed. Where a party, after thirty-seven years, wakes up and asserts a right which he has neglected to assert during that time as to parties who to his knowledge were enjoying the rights in apparent hostility to him, it is a fair inference that he is relying not so much upon the merits and justice of his claim as upon the hope that the essential evidence against him may be lost. Plaintiff’s rights “ have been permitted to sleep so long that they should know no waking.” (Matter of Bank of Sing Sing, 32 Hun, 462; affd., 96 N. Y. 672.) After the plaintiff’s long sleep, it cannot be surprised if reasonable inferences are drawn against .it from its silence; that the court shall be no more solicitous to discover its rights than it has been to give them timely assertion. The facts called upon it to take some action and to assert its rights. Its claim is stale and doubtful, and the court should not now question the rights of the parties who have been in full use of the water rights for so long a time. If the plaintiff gave any license to use the water inconsistent with the idea that it had abandoned its rights, it alone is in a position to prove the facts and to disclose facts showing its real intention during all the time in question. It should not leave the court to draw inferences as to its intentions. Not having proved the facts or explained its silence, or shown its ignorance of what was taking place, or disclosed its real intention with respect to the alleged water rights, the court must apply to it the ordinary presumptions usually applied to human action. The plaintiff, apparently a water-power owner in the village, must have known of the legislation referred to and of the lawsuit involving the substantial rights of the property owners in the village. The State officials are presumed to have done their duty, and are presumed to have obtained the release of all parties interested in the water power of the old Bear race, and we may assume that they either obtained the plaintiff’s release or that the plaintiff claimed no right. The fact that the plaintiff made no claim under the act is pretty good evidence that none of its rights were injured by the permanent destruction of the race below the street.
It is manifest that the plaintiff has no just claim against *350the State. It had lost its right by adverse possession or by abandonment. I favor an affirmance of the judgment, with costs.
All concurred, except Cochrane, J., dissenting, with opinion, in which Woodward, J., concurred.