The rights of the parties in this action depend on the decision of the question of ownership of the land on which the defendant planted the trees. The plaintiff claims that the title is in him, or if not in him, then in the people of the state. The defendant insists that he is the owner, and as such had perfect right to use it as he has done, and to plant trees thereon, even though in their future growth they should in some degree obstruct the plaintiff’s view of that beautiful lake of Cazenovia. This lake is about five miles long, and three-fourths of a mile wide, has no current and no main inlet. The land lying along its shores is mostly improved, and used as farming land. Elegant mansions have been erected, and the region of country is healthy and beautiful. But this lake, in my judgment, is in no legal or just sense of the term navigable water. It is not, in the language of Lord Hale, a highway “ for a man, or goods, or both, from one inland town to another.” It is too small to be of any practical use in navigation, except it were as a connecting link of some internal improvement. The state took no notice of its existence in the patent granted to Edwards. The northern line of that patent crossed the lake north of the land in dispute, and this land was embraced within the boundaries of the grant. There is no restriction or exception of the lake, no reference to it, no reservation of the water or land under water. The grant under that patent carried the southern portion of this lake as completely to Edwards as the patent to Zephaniah Platt passed to him the title to a portion of the Saranac river. (See People v. Platt, 17 John. 195.) The defendant derives his title remotely from J ohn LinHaen, one of the grantees of Edwards the patentee, and his premises, in that deed, dated in 1804, as well as in the subsequent deeds, are bounded on the west and south by the lake and *125outlet thereof. Under these deeds the premises of the defendant have heen held and possessed, and for nearly forty years past by the defendant and his father. Under these deeds the title of the defendant extends “ usque ad medium filum aquai.” It was not a limited grant. The premises of the defendant are not bounded on the west by the bank of the lake, but are bounded by the lake itself. There is no intent manifested on the face of the deed of the grantor to restrict his grant. The deed would have the usual legal effect, and as an appurtenance would carry along the land under water to the center ; at all events it would carry the right to the land filled in, where the water was shallow, immediately in front of the defendant’s premises. (See opinion of Walworth, chancellor, as to boundaries, Canal Appraisers v. The People, 17 Wend. 599.) In my judgment, under this view of the case, the defendant is the unqualified legal owner of the premises.
But taking another view, and assuming that this lake is navigable water, and that the title to the land under water did not pass under the patent to Edwards, but was reserved by the state, then how stands this action P In such cases, how does the state hold the title where it has sold and conveyed away all the land bounded by the lake or river, and where the riparian proprietors stand face to face with their feet touching the outer edge of the water ? “ It is,” says Chancellor Kent, (3 Com. 545, 9th ed.) “a settled principle in the English law, that the right of soil of owners of land bounded by the sea or on navigable rivers, where the tide ebbs and flows, extends to high water mark; and the shore below common but not extraordinary high water mark belongs to the state as trustee for the public.” It may be added that in New York, the state long ago, and immediately after the revolutionary war, declared herself also a trustee for the owner of the adjacent lands. By our present statute the commissioners of the land office may grant land under navigable lakes and rivers, when necessary for commerce or proper *126for the purpose of beneficial enjoyment of the same by the adjacent owner; “but no such grant shall be made to any person other than the proprietor of the adjacent lands, and any such grant that shall be made to any other person shall be void.” (1 R. S. 5th ed. 552.) The state then is trustee for the public of the land under water in navigable lakes and rivers, so as to protect navigation and prevent hindrances or obstructions; on the other hand she declares herself trustee for the riparian proprietor, and that grants are to be made to him alone, and that they will be made not only for purposes of commerce, but when proper for the beneficial enjoyment of his adjacent lands. Then when the proper and constituted authorities of the state proceeded to deepen the outlet of the lake, and deposited the stones and earth that were removed, in the shallow water in front of and adjacent to the defendant’s premises, it was a visible and public declaration that this portion of the lake could no longer be used for navigation. The defendant entered into possession, and the trusteeship of the state, both for the public and the riparian proprietor, was virtually at an end. It is true that no formal grant was made to the defendant. But the land became eminently proper, and not only proper but necessary, for the beneficial enjoyment of his adjacent premises. There arose, if not a legal at least a strong equitable title, which, coupled with actual possession, no one except the state herself should be allowed to dispute. I cannot agree with the able and learned referee who tried this case, that the land remained a highway. Under the civil law it is very likely it would have been so, but not under the common law. “In the civil law the banks of public rivers, and the sea shore, were held to be public.” (3 Kent’s Com. 543,) At this day, men and horses may be seen on the banks of the Rhine towing boats up its oft rapid waters, following in paths which have been thus trod for ages, and protected under customs and laws which had their origin in remote centuries, when, before the Christian era, the legions of Julius Caesar pitched their tents, and *127built their towns, and flaunted the victorious Roman eagles in the vallies and on the hills which adjoin and bound that beautiful river. But such was not the common law, either in England or in this state. The public here have no highway along the margin of our navigable rivers and lakes, unless the same has been acquired by express grant or prescription. In any view of this case which I have been able to take, the plaintiff cannot maintain this action. If the defendant is the legal owner of the land, the plaintiff is remediless; if he is the equitable owner in possession, then no stranger can interfere with him.
[Broome General Term, January 28, 1862.Balcom,, Campbell and Parker, Justices.]
This action is brought on what may be termed the equity side of the court. The planting of the trees, and obstructing the plaintiff’s view of the lake, may not be neighborly. Of this I have no knowledge. Whether it is necessary or desirable for the protection of the defendant’s property, or for its better enjoyment, does not appear. These matters we cannot regulate. In my opinion the judgment must be reversed,^ with costs to abide the event,
Parker, J„ concurred.
Balcom, J. dissented.