The plaintiffs ask for an injunction against the defendants, who are commissioners of highways of the towns of Mentz and Conquest, in the county of Cayuga, restraining them, as such commissioners, from erecting or rebuilding a bridge across the Q-enesee river, which separates the said towns. The complaint alleges that a previous bridge *664had been erected, some twenty years since, in the same place, and kept up until it was carried away by a freshet, in 1865, and alleges that such bridge was erected without any authority from the legislature; that said river is a public navigable river; that the state owns the bed of the stream, and that the erection or rebuilding of the proposed-bridge is not authorized by any legislative act, or in any way allowed by the state authorities. The complaint further alleges, that the Seneca river is about thirty miles in length, and is of an average width of about thirty-five rods, and of an average depth of about 'eleven feet, and has navigable communications from Lake Ontario to Schenectady, and runs through a thickly settled country and near a number of villages ; that its banks are lined with large quantities of timber; and that the state has expended large sums of money, from time to time, in dredging its channel and in improving its navigability. The complaint further alleges, that said bridge, if constructed, will be a nuisance and a purpresture, in fact and in law, as well as a violation of the act of the legislature passed April 2d, 1813, declaring said river to be a public highway, and mating it a misdemeanor to obstruct it by any erections or works in its bed or on its banks ; and it further alleges, that said bridge will necessarily dam up and obstruct the navigation of said river, and hinder and delay, if not entirely obstruct, the plaintiffs in the exercise of their rights to freely navigate said river, and would also necessarily amount to an usurpation of a franchise which can only be conferred by the legislature.
The answer of the defendant denies substantially most, if not all of the essential facts stated in the complaint. It denies that the Seneca river is a navigable river; denies that the state owns the bed of the stream : denies that the proposed bridge will be any obstruction to said river or its navigation ; and denies that it will be a nuisance or purpresture ; and insists that the defendants have a lawful right as commissioners of highways to lay out a highway, and erect a bridge across said river.
*665The defendants annex to their answer the report of O. 0. Dwight, Esq. a referee in proceedings in this court relative to said bridge, under the act, chapter 639, passed April 16, 1857, in which the said referee finds and reports that said river was declared a public highway by act of the legislature in 1813, and in the early settlement of the country was occasionally navigated in seasons of high water by rafts and boats of small size; but that it had not been navigated for many years, and is not now a navigable stream.' This report, I presume, states the truth substantially in respect to this river, and, connected with the defendants’ answer, substantially denies and disproves the equity of the complaint.
It appears from this report that there are already erected and in use twelve bridges across said river, at an average distance of about three miles from each other, throughout its entire length. I cannot see, therefore, why or how the bridge which -the defendants propose' to construct across said river, will particularly add to the obstruction already existing to its navigation.
Upon these facts, if this report was properly before me and had any judicial force in-this proceeding, I should’be inclined to deny the injunction entirely, upon the ground that the equity of the bill was denied ; but I think I cannot give any force to this report, as against the state, and I cannot overlook the fact that the legislature has asserted for the state the right to control said river, and has expressly declared it to be a public highway, by a public act, and that the bridges aforesaid, erected over said river, have been so erected upon leave or license from the state.
The state has, therefore, the unquestionable right to control the use of the river and prevent the erection or creation of any bridges or dains, or other works which will obstruct the free use of the same as a public highway.
Whatever rights the public have in this river, the authorities of the state were bound to protect, and this suit is properly instituted for that purpose. But the public right in this *666river, upon the assumption that it is not navigable in fact, is to be regarded simply as that of passage, as in a highway, as was said by this court in Ex parte Jennings, (6 Cowen, 537,) in reference to Chittenango river, “is one of passage, and nothing more, as in a common highway. It is a mere easement, and the proprietor of the land on the banks has a right to use the land and water of the river in any way not inconsistent with the easement. If he makes any erection rendering the passage of boats inconvenient or unsafe, he is guilty of a nuisance, and this is the only restriction which the law imposes upon him.”
By declaring a stream a highway, as in this case, and as has been done with most of the streams of this state, which could, at any time and in any stage of the water, be navigated with rafts, floats, or small boats, the state does not acquire any title to the bed of the stream, or any higher or other right than it possesses in or over ordinary highways upon the land. But in respect to all fresh water streams which are navigable in fact, like the Niagara, the St. Lawrence, the Genesee, and Oswego below the falls; in those rivers the rights of the public are very different. Such streams are public, and belong to the state, as much so, doubtless, as the Hudriver where.the tide- ebbs and 'flows, and as much so as the great lakes in the interior of the state. But this doctrine cannot, in my opinion, have any. further extension. The rule of the common law in respect to highways and fresh water streams not navigable in fact, is too firmly established in this state to be changed or uprooted, except by a constitutional amendment, declaring that the provision in the constitution of 1777, which declares that “ such parts of the common law of England and the statute law as did together form the law of the colony on the 19th day of April, 1775, shall continue the law of this state,” be repealed, or shall not be construed to apply to water courses and highways.
Rivers navigable in fact, in all countries, belong to the public. This is so by the common law, by the civil law, and by the *667French code. Such streams, in the nature of things, are incapable of private appropriation, or if otherwise, any and every private appropriation of them is utterly inadmissible. But the rule does not apply where the reason ceases, and where the public interest on the contrary requires that private property should exist, and private rights be allowed, recognized and maintained for the public good. There is no reason, in fact, why the state should own the bed of the small streams utterly unnavigable, except in a time of high water, and then only with rafts and logs, and small flat boats; but sound reason and the public interest is all the other way.
The state doubtless may retain the bed of streams when it has the title, and by grant or patent in express terms has bounded the grantee by the shore as it did, or is claimed to have done, with the Mohawk river. In such case, as the primary source of title, it grants what it pleases, and conveys no more. In The People v. The Canal Appraisers, (33 N. Y. Rep. 461,) it has been recently held that the state owns the bed of the Mohawk river. The same view was taken in The Canal Appraisers v. The People ex rel. Tibbits, (17 Wend. 571,) in respect to this Mohawk river. In that case Judge Beardsley says, p. 608 ; “ That the patent did not include the bed of the river, or the islands.” He said that “ the evidence most conclusively establishes that not only the colonial government but the state authorities have considered the bed of the Mohawk as belonging to the public.”
If, therefore, the state owns the bed of the Seneca river, as is asserted in the complaint in this case, the law of those cases applies to it, and no one can lawfully construct a bridge over it without the consent of the legislature. But if the right of the state in this river, or its right to control it, depend entirely upon the simple assertion by the legislature that it is a public highway, then the defendants, I think, are entitled to lay out a highway and build a bridge across the said river, unless, they proposed to take toll, which would be a franchise that must be granted by the legislature. It is not *668alleged that this is proposed or intended. If it be a navigable river in fact, they could not lawfully build such bridge without leave of the legislature, or if the state owns the bed.This is asserted in the case of The Fort Plain Bridge Co. v. Smith, (30 N. Y. Rep. 63,) and is undoubtedly the law of this state.
In many cases the legislature has granted the privilege to construct dams in, and to erect bridges over streams declared like this river to be public highways. This saves such erections from indictment and abatement as public nuisances ; but is not otherwise necessary or of any'importance. The numerous bridges erected by the local authorities over such streams, in all parts of the state, have not, I think, generally been authorized by special acts of the legislature. Bridges in most cases, I think, have been erected whenever the public convenience or necessity has required them, without doubt or question in respect to their lawfulness. But all such erections must undoubtedly be made at the peril of the parties making them.
The state has, I think, the undoubted right to forbid such erections, and to abate them when made, if they will or do in any degree obstruct the navigation of the streams over which they are erected.
The state government in this particular is the guardian of the rights of each and every citizen, which rights consist in an absolute and unqualified privilege without let or hindrance at all times freely to navigate with boats, rafts, logs or any other mode of water conveyance any and every of the streams in the state that is at any season of the year, or at any stage of water therein capable of navigation,-and particularly so if the legislature has by special act declared such stream a public highway.
While therefore I think the defendants cannot be permanently restrained from erecting the proposed bridge as a free bridge, provided it can be constructed in such a manner as not to interfere with the free navigation of said river, if it *669shall turn out upon the trial that the said river is not navigable in fact, and that the state does not own the bed of the stream ; yet I am inclined to think upon the whole that inasmuch as it is asserted on the part of the people that this is a wide stream, of the width of thirty-five rods, and of the average depth of eleven feet, and it is also asserted that the state owns the bed of the stream ; and it also appears that the bridges heretofore erected across it have been constructed under leave or authority from the legislature ; that I ought in behalf of the public interest rather to assume that the state has the rights it claims till the truth can be otherwise established, and restrain the erection of the proposed bridge till the hearing. And it is so ordered, with costs to abide the event.
[Monroe Special Term, June 24, 1867.2?. Darwm Smith, Justice.]