I concur with Mr. Justice Kellogg because I think we are bound by the holding in First Construction Co. v. State of New York (221 N. Y. 295). It is true that above the dam constructed by the State no channel was made separate from the river and waters thereof were not diverted from the stream opposite or above the claimant’s lands, as Mr. Justice Van Kirk says. The dam erected by the State was needed to accomplish that improvement of navigation in the river itself. The argument of Mr. Justice Van Kirk is that this characterizes the act of the State as an exercise of its governmental power to improve navigation; that the claimant accepted its grant subject to the implied right of the State to foreclose the enjoyment of it without compensation, whenever the State saw fit to do so in aid of navigation. He concedes, however, certain exceptions: (1) Where the State, in aid of navigation, has made a previous grant in aid of navigation, not an obstruction or hindrance to navigation. (2) Where the -State seeks to divert the water of the stream to aid navigation in an artificial channel and not an improvement of the stream itself for that purpose.
It is assumed by Mr. Justice Van Kirk that the grant to the claimant was not given in aid of navigation and that the erection of claimant’s dam would use the entire stream and constitute an interference with navigation. It is difficult to see how the original purpose of the grant has any significance, provided the exercise of the right granted accomplishes the very aid to navigation in the channel of the river above the dam now supplied by the State’s dam. The *291dam by whomsoever erected would serve the same purpose. Claimant’s dam, therefore, would have been in aid of commerce and navigation in this instance even though it occupied the entire stream. It would not have constituted an interference with the very improvement for navigation purposes as to which the State assumed to act. To determine this question rightly, we have the right to assume the possibility of the erection by the claimant on this site of a dam entirely suited to the State’s needs. If the claimant’s dam had been erected, the State could have taken it; but if that dam accomplished the necessary depth above the dam, the mere taking by the State would not have aided navigation and the State would have had to pay. The logic of the situation is fully seen when we assume the possible erection of this precise present dam by the claimant rather than by the State. By this analysis we see that so far as making the river navigable above the dam, in the manner now accomplished, is concerned, the State has done no more for navigation than claimant could have done. The State could have minimized its own cost of improving navigation by adopting the claimant’s improvement without ownership of the dam and by simply controlling the operation of it so as to get the necessary use of the waters for the canal. It could have interfered by simply condemning the necessary land to create a lock at one end of the claimant’s dam, using so much water as it needed for navigation. This water it could have used, so far as reasonably necessary for navigation, but under the cases cited by Mr. Justice Kellogg, if it diverted the waters to use them in an artificial channel below the dam, it would have to pay any damage that was caused to claimant. The net result would be that for perhaps a nominal sum th’e State in such circumstances would enjoy all that it now enjoys in navigation development, but the claimant would have a valuable water power which in all likelihood would not be interfered with in any substantial degree by the operation of the lock and the supply of water to the artificial canal below the dam. By proceeding as it has, the State has created for itself no greater navigation facilities but a water power which it may use for gainful purposes and of which it has deprived claimant for no reason other than to own the water power itself. Under these circumstances, the mere fact that the activity of the State leading to this appropriation of claimant’s property was one primarily in aid of navigation is of no more significance than was given to the activity of the State in the First Construction Co. case, where the State appropriated for Barge canal purposes lands under water in Gowanus bay previously granted by the State to private owners upon which to erect wharves. I think this case is governed by that decision.