The claimant, the Waterford Electric Light, Heat and Power Company, purchased and became the owner of the uplands, or the flowage rights upon the uplands, adjoining the Hudson river on either side for a distance of about two miles, which uplands, including those on which it had flowage rights, would be submerged by a dam which it purposed to construct across the Hudson river a short distance above Waterford and at the lower end of its riparian rights. After it had procured a part of these uplands and flowage rights, it procured from the Legislature the enactment of chapter 164 of the Laws of 1901, which became a law March 22,1901, which act authorized the claimant to construct a dam across the Hudson river on the lands now owned by it, or which it shall hereafter purchase or acquire, and to forever maintain said dam and to flood back up said river so far as it owns or shall hereafter purchase or acquire the adjacent uplands, or the rights of flowage thereon, for the purpose of maintaining the pond formed by such dam; and any interest of the State in the lands under the waters of said river covered by said dam, or which may be flooded by the erection thereof, was granted to the claimant, its successors and assigns. Claimant had paid for its uplands and flowage rights, but paid nothing to the State for that which it received under the aforesaid act of the Legislature.
In 1900, by chapter 411 of the Laws of that year, the State Engineer and Surveyor was required to cause to be made the surveys necessary to determine the cost of constructing the Champlain, Erie and Oswego canals and to make surveys between Watervliet and Fort Edward, “ to ascertain whether it will be cheaper to improve the Champlain canal along its present route or to canahze the Hudson river between those points.” (See §§1,5.) Pursuant to this requirement, and on February 12, 1901, the State Engineer and Surveyor rendered his report setting forth the cost of improving the Champlain canal along the old route through the land and also the cost by way of the Hudson river from Troy to Whitehall. Thereafter the Barge Canal Act (Laws of 1903, chap. 147) was passed, by which the State determined that “the route of the Champlain canal as improved shall be as follows: Beginning in the Hudson river at Waterford, thence up the Hudson river canalized to near Fort Edward.” (See § 3.) The plan adopted fixed the canal for the distance of forty miles between Watervliet and Fort Edward, thirty-six miles in the river and four miles outside of the river. Under this act the State has constructed a dam across the Hudson river, slightly below the site chosen by this claimant for its dam, and has in consequence flooded the uplands and the lands on which claimant had flowage rights. The claimant then filed its claim and has procured an *293award in its favor for its property so taken by the State in the sum of $250,000, with interest from June 30, 1913. The award was made as compensation from the State for “ the value of its [claimant’s] lands and flowage rights which have been appropriated by the State as that value has been enhanced by the franchise granted by chapter 164, Laws of 1901.” The court held: “ In fixing the value of claimant’s lands and flowage rights which have been appropriated by the State, claimant is entitled to have considered as an element of value the franchise to build a dam in the river, which was granted by chapter 164, Laws of 1901.” And the court further found that said chapter “ granted to claimant a franchise to construct and maintain a dam in the Hudson river opposite and adjacent to its uplands which it owned at the time of the passage of the act, or might thereafter acquire, which franchise, having been accepted and acted upon, cannot be revoked or destroyed without compensation,” and found that “ The lands and flowage rights owned by claimant, considered either as one entire property or as several separate parcels, were of relatively slight value without the franchise granted by chapter 164 of the Laws of 1901. The franchise greatly enhanced the value of said lands and flowage rights.”
It is not questioned that the claimant is entitled to compensation from the State for its uplands and flowage rights on uplands, together with such consequential damages to its remaining uplands, if any, as it has suffered. The question presented is whether or not it is entitled to compensation for such value as its so-called franchise has in connection with these lands. In other words, whether or not the claimant is entitled to recover, in addition to just compensation for its uplands and flowage rights, an increased amount because of its alleged “ franchise to build a dam.”
That the Hudson river, at the place in question, above tide water, is a public navigable stream in law, is not open to question in this court (West Virginia Pulp & Paper Co. v. Peck, 189 App. Div. 286; Thompson v. Fort Miller Pulp & Paper Co., 195 id. 271; Thompson v. State of New York, 204 id. 684), or in the Court of Appeals as we understand the decisions. (Fulton Light, H. & P. Co. v. State of New York, 200 N. Y. 400, 413; Danes v. State of New York, 219 id. 67, and cases cited.) And by the evidence painstakingly prepared the Attorney-General has shown that it has been and is in its ordinary and natural condition navigable in fact. Title to its bed is in the State, except where there has been an express and direct grant from the sovereign of the bed of the stream. (Williams v. City of Utica, 217 N. Y. 162.) Prior to the act of 1901 (supra) the title to the bed of the Hudson river had not been conveyed by the State to the claimant or its predecessors in title./ *294In each grant, under which title to the bed is claimed, the lands are bounded by or upon the navigable river and in such description no part of the bed of the stream is included. It could not build a dam across the stream without license from the State. (Fort Plain Bridge Co. v. Smith, 30 N. Y. 44.) So that claimant’s interest or right in the bed of the stream is such only as it had under the act of 1901.
The power to improve public streams for navigation purposes belonged to the people of the State when the Federal Constitution was adopted; the State or its people did not surrender this right and still have it.
A riparian owner on a navigable stream, having also title to the bed of the stream, has not that full, complete title to the submerged lands which he has to his uplands; it is a qualified title. The rights of the riparian owner in a stream and in the submerged lands under a stream are aways subject to the paramount right of the State. (Union Bridge Co. v. United States, 204 U. S. 389, 392, 398, 399; Gibson v. United States, 166 id. 269, 271; United States v. Chandler-Dunbar Co., 229 id. 53, 70.) Acts done by the State in the proper exercise of its governmental power to improve a public stream for navigation and commerce, which impair or destroy the use by a riparian owner of his rights in the stream or in the lands under the stream are not a taldng of private property for the public use within the meaning of the constitutional limitation; and the consequences of such acts do not entitle the owner of such rights in the stream or its submerged lands to compensation from the State or its agents, or give to the riparian owner any right of action therefor. (Union Bridge Co. v. United States, supra, 390; Transportation Co. v. Chicago, 99 U. S. 635; Sage v. Mayor, 154 N. Y. 61, 77.) The loss of the rights in the stream in the submerged lands is merely incidental to the exercise of a servitude to which the property had always been subject; the servient right exists so long only as the dominant right is not exercised; when the dominant right is exercised to the damage of the servient right, the latter is not taken; it expires. Riparian ownership is subject to the obligation to suffer the consequences of the improvement of navigation in the exercise of the dominant right of the government in that regard. The right of navigation rests in the waters of the stream and not in its submerged lands and no burden in the form of damages, as compensation for the value of a subservient right, rests upon the government because of the exercise of its dominant right; the State cannot be so crippled in the exercise of its sovereign powers. The rights in a public stream belonging to the riparian owner, or the owner of the bed of the stream, are held with knowledge that those rights may be lost when the dominant right is exercised. When the State improves a public stream *295for the public good it acts solely in the interests of the public and not with any intent to destroy any right of a riparian owner. (Union Bridge Co. Case, supra.)
Unless, therefore, the act of 1901 (supra) gave to the claimant some special property right, a property right other than the riparian owners who own the submerged lands of a public stream have, the act of the State in determining to improve the Hudson river and in so doing did not take the rights of the claimant in the stream within the meaning of the Constitution (Art. 1, § 6) requiring compensation for the taking of private property for the public use.
It is to be noted that there was nothing in this act of 1901, chapter 164, limiting the power of the State, should occasion arise, to improve the stream for navigation and commerce. The passage of the act and the granting of the rights therein described did not and could not legally limit this power of the State. (Union Bridge Co. Case, supra, 395.) “ The so-called jus privatum, or absolute ownership of lands under navigable waters, together with the exclusive privilege in the waters themselves, which attached to the English crown, resides in the people in their sovereign capacity and cannot be conveyed for private purposes.” (Appleby v. City of New York, 235 N. Y. 351, 362.) The right to control navigation upon the public waters of the State remains in the State to be exercised in the public interest. (Id.) “ ‘ The State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the instance of parcels mentioned for the improvement of the navigation and use of the waters, or when parcels can be disposed of without impairment of the public interest in what remains, than it can abdicate its police powers in the administration of government and the preservation of the peace.’ ” (Matter of Long Sault Development Co., 212 N. Y. 1, 10.)
What then of the grant of the right to build a dam? In Stone v. Mississippi (101 U. S. 814) the State had granted a charter to a private corporation to conduct a lottery for a period of twenty-five years, for which the corporation paid to the State a valuable consideration in money. The following year by an amendment to the State Constitution the Legislature was forbidden to authorize any lottery. The corporation was then forbidden to further operate its lottery. The court held that in this there was no violation of that provision of the United States Constitution (Art. 1, § 10, subd. 1) which prohibits a State from passing any act which impairs the obligation of contracts. It said (p. 819): “ No Legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. The supervision *296of both these subjects of governmental power is continuing in its nature, and they are to be dealt with as the special exigencies of the moment may require. Government is organized with a view to their preservation, and cannot divest itself. of the power to provide for them.” It further said (p. 821): “All that one can get by such a charter is a suspension of certain governmental rights in his favor, subject to withdrawal at will. He has in legal effect nothing more than a license to enjoy the privilege on the terms named for the specified time, unless it be sooner abrogated by the sovereign power of the State.” Rights arising from contracts with the State are subject to regulation for the protection of its sovereign power. (Mugler v. Kansas, 123 U. S. 665.) In Chicago, B. & Q. Railway v. Drainage Comrs. (200 U. S. 561) it was held where a bridge had been lawfully constructed under the Farm Drainage Act of the State of Illinois and it became necessary that this bridge be removed and larger openings made for an increased volume of water, that it was the duty of the railway company at its own expense to remove the present bridge and also, unless it abandoned or surrendered its right to cross the creek at or in that vicinity, to erect at its own expense and maintain a new bridge in conformity with the regulations established by the drainage commissioners under the authority of the State; and that such requirement, if enforced, would not amount to a taking of private property for a public use within the meaning of the United States Constitution, nor to a denial of the equal protection of the laws. (See U. S. Const. 14th Amendt. § 1.)
The grant to this claimant of the privilege of building a dam in the river was a license or privilege only, subject to be repealed or revoked whenever, in the interests of the public, the State should determine to improve the Hudson river for purposes of navigation and commerce; it was not a contract by which it bargained away its sovereign powers. (Matter of Long Sault Development Co., supra) This claimant accepted the grant, knowing that this was the nature and extent of its rights. The injury to these limited private rights claimed in the stream, at least before they have been exercised, must be deemed incidental to, and to have resulted from, the exercise of the governmental function, reasonably exercised for the public good, and the claimant is not entitled to compensation therefor. It is established by a long line of decisions (in addition to those above cited) that “ injury may often come to private property * * * taken for the public good and for no other purpose, and yet there will be no taking of such property within the meaning of the constitutional guarantee * * * against the taking of private property for public use without compensation.” (Chicago, B. & Q. *297Railway v. Drainage Comrs., supra, 584; New Orleans Gas Co. v. Drainage Comm., 197 U. S. 453; West Chicago Railroad v. Chicago, 201 id. 506; Lake Erie & W. R. Co. v. Smith, 61 Fed. Rep. 885; State of Indiana v. Lake Erie &W. R. Co., 83 id. 284.)
In Fulton Light, H. & P. Co. v. State of New York (200 N. Y. 400), which arose on the Oswego river, and in Commissioners of Canal Fund v. Kempshall (26 Wend. 404), which arose oh the Genesee river, the court held that the action of the State complained of was a diversion of the water of the stream to aid navigation in an artificial channel and was not an improvement of the stream in the public interest; that the State could do the act under its sovereign right of eminent domain, but not under its sovereign power to improve navigation and commerce; in consequence that the claimants were entitled to compensation for the resulting damages. But in the instant case the rights of the claimant have not been so destroyed or diminished. The State built its dam a little distance below the point at which claimant says it intended building its dam. It constructed headgates at the end of this dam, through which water is let into a canal, all of which is below the dam. This canal extends for some 2,700 feet, partly in a cut through the uplands and partly in a channel of the river. Above the dam, for a short distance, the river bank was cut or shaved off, but no channel was made separate from the stream opposite or above the claimant’s lands. It was the construction of the dam by the State which has deprived the claimant of the opportunity to exercise its right to build a dam in the stream and this construction was a part of a comprehensive plan to canalize the river to improve navigation and commerce in the stream.
It is not believed that any of these conclusions are in conflict with the holding in First Construction Co. v. State of New York (221 N. Y. 295). In that case the harbor and pier lines had been established in the tideway and grants to the several shore owners gave the right to construct piers and docks and to fill in from the shore, within a general scheme for improving the harbor and constructing the Brooklyn basin; such a grant is in aid of commerce and navigation, not an obstruction or hindrance to navigation, and the court intimates that there is some consideration therefor in that the individual pays the cost of harbor construction rather than the public. It was said no controlling authority holds that “ the grant of a mere privilege to fill in tidewater lands, so long as unexercised, conveys title;” that such grants, while they do not convey title, may not be revoked at will, though they may be lost or revoked for nonuser; they may not be arbitrarily taken without compensation and, when exercised, will mature into title in the grantee. This I understand was held because the grant was in aid of navigation. The privilege of building *298a dam, which the claimant demands now, might not be exercised and enjoyed without substantial interference with the improvement of the navigation of the stream which the State has completed. The weight of authority is that the State may not grant the navigable waters for private purposes, but it may under some circumstances in aid of navigation. “ The right of the grantee to fill in his land under water with solid filling * * * is a delegated exercise of the public right in aid of commerce and subject to the prior exercise of the public right to regulate navigation directly. The grant for beneficial enjoyment is a grant in aid of commerce.” (Appleby v. City of New York, supra, 362, 363; Matter of Long Sault Development Co., supra.)
I have believed that the canalizing of the Hudson river is an improvement thereof by the sovereign State in the public interest for the purposes of navigation and commerce. If it is not, a vast amount of discussion in this case is wasted. The fact that the State has decided to construct the canal for short distances outside of the river to shorten or straighten the route does not change the character or purpose of this work. Nor is there force in the claim that the dam constructed is an obstruction to the navigation of the stream. The State has determined upon its plan for improving the stream and its determination is conclusive. The construction of the dam is an essential part of this plan of improvement. It was built for this sole purpose and there was no intent thereby, as the concurrent opinion says, to create “ a water power which it [the State] may use for gainful purposes and of which it has deprived claimant, for no reason other than to own the water power itself.” The claimant had built no dam or any part of a plant, nor did it give any evidence of an intent to build, though ten years went by after the act of 1901 became a law before the State built. During these years the claimant was in no wise restrained from building by anything stronger than apprehension. This was a long nonuser. The State was not called upon to wait its public work until claimant decided to act. It expended its money and built the dam when the necessity arose, as it, performing a sovereign act, had a right to do. It is a mistake to argue that, if claimant had built a similar dam on this location, it would have answered the same purpose as the State dam and so the grant to it is in aid of navigation. There was no such intent when the grant of 1901 was made. It was exclusively for a private purpose. That purpose or intent is not changed because in the course of events the dam, if claimant had built one, might serve another purpose. The grant of 1901 was in no sense in aid of navigation.
It has not yet been held that, by building a dam in a public stream, the State deprives any riparian owner of his water power *299in the stream opposite his premises. At Thomson in Washington county the State built a dam across the Hudson river when the old Champlain canal was first constructed, in aid of the canal; for many years the Iroquois Pulp and Paper Company and the United Paper Board Company have used the waters from above this dam through a canal on their premises and they are so using it to-day without interference from the State. That a riparian owner along a public stream has the right (save where its enjoyment conflicts with the exercise of the sovereign power) to use the water power opposite or over his lands, and that the ownership of the submerged bed of the stream neither increases nor diminishes this right, so far as we know, has never been questioned. (See United Paper Board Co. v. Iroquois Pulp & Paper Co., 226 N. Y. 38.) Had the claimant built its dam and plant before the State built, it would have been in a like position with the West Virginia Pulp and Paper Company at Mechanicville, which is to-day using waters of the stream for power. (See West Virginia Pulp & Paper Co. v. Peck, supra.)
What damages could have been allowed to the claimant, had it constructed its dam and plant prior to the improvement of the river by the State, or whether the State, under its power of eminent domain, has taken more of claimant’s uplands above the flowage line of the pond than was necessary for its purpose and has thereby deprived the claimant as a riparian owner of its right to use the waters of the stream as it passes its premises, in so far as that use does not conflict with the right of the State, are questions not before the court on this appeal. The Court of Claims has not considered either of these elements in awarding damages and I do not understand that the proofs are in the case upon which this court could fix the amount of damage, if it thought an award on either ground might be made. The sole question here, as above stated, is whether or not damages may be allowed because claimant has been deprived of its so-called franchise right to build a dam across the Hudson river near the location of the State dam.
The judgment should be reversed and the case remitted to the Court of Claims to determine the value of the uplands and the flow-age rights, with consequential damages, if any, for which claimant is entitled to compensation, which compensation shall not be increased by reason of any property right or privilege to build a dam granted to the claimant under the act of 1901.
Cochrane, P. J., concurs.
Judgment modified by providing for payment- of an increased sum for interest, as indicated in the opinion of H. T. Kellogg, J., and as modified affirmed, with costs.