The following opinions were delivered r
By the Chancellor.In England no principle of the common law as to the rights of property is better established than that which is the chief subject of controversy in this case. There a grant of land bounded upon the sea shore, or upon a stream or arm of the sea where the tide ebbs and flows, conveys to the grantee only that part of the bank which is not covered by the water at flood tide. And neither the lands under the water, the islands therein, or the right of fishery will be conveyed by implication. In order to affect these the terms of the grant must be so clear and explicit as to leave no manner of doubt as to the intention of the grantor to part with those rights which the welfare of the public requires to be reserved for the benefit of the citizens at large. But the rule is directly the reverse as to those grants which are bounded on rivers and streams above tide water. In such cases, if the grant is bounded on the stream, or along the same, or on the margin thereof, or where any other words of similar import are used, the grant legally extends to the middle or thread of the stream ; and not only the bank but the bed of the river, and the islands therein, and the exclusive right of fishing are conveyed to the grantee, *444unless they are expressly reserved, or the terms of the grant are such as. to show, a clear intention to exclude them from the general operation of the rule of law ; 5 Coke’s Rep. 106 ; Davie's Rep. 152; 3 Kent’s Comm. 344; Hale De Jure Maris; yet the right of the riparian owner to the stream itself was not absolute by the English common law. If the stream was navigable, although the legal ownership was assigned to the individual, it was subject nevertheless to the right of the public to use the waters thereof as a public or common highway for the passage of boats and other water craft.
Such unquestionably was the common law of England- at the time of the first settlement of this country, and it has continued the same down to the present day. This is-not denied on the part of the plaintiffs in error; but it is insisted by them that such is not the law in this state; that this principle of the common law was never introduced here, and that it is not applicable to the Hudson, Mohawk and other streams in this state which in many places are boatable above tide water. This is an important question, involving not only the claims of those whose mills and mill sites have been destroyed by the making of the Erie and Champlain canals, but also the rights of many other citizens to some of the most valuable property in the state. Many of our fresh water streams are navigable with boats and rafts, and have been declared public highways by the legislature, or have become so by prescription, and yet the original beds of some of these streams, and the banks of most of them are occupied by extensive milling and manufacturing establishments. The use of a part of the bed of the stream is absolutely necessary to the existence of these establishments, but it is probable that not in one case in a hundred has the public ever expressly granted the lands under the water. It therefore becomes our duty to examine this question with great caution; and with reference to the important interests involved in it: for if the state has the right to take an unoccupied, and perhaps unimportant mill site, the title to which depends upon this principle ofthe common law alone, it may also have the right to take half a million of property from the owners without compensation, which is claimed under a similar title.
*445By the constitution of this state such parts of the common iaw of England, and of the acts of the colonial legislature, as were in force of the 19lh of April, 1775, are now the law of this state, except so far as the same have been altered by subsequent legislation. It is a natural presumption, and therefore adopted as a rule of law, that on the settlement of a new territory by a colony from another country, and where the colonists continue subject to the same government, they carry with them the general laws of the mother country; which thus become the laws of the colony until they are altered by common consent or by legislative enactment. The colonists can hardly be presumed however to have adopted those laws which were merely local in their nature, and wholly inapplicable to their situation in the new territory. On these principles it is contended that as the state was originally settled by a colony of the Dutch, the rule of the civil law prevails as to all our streams which are navigable with boats or rafts above tide water. Or at least, that the rule of the common law on this subject was local; was wholly inapplicable to the fresh water rivers of this state, and, for that reason, was never in force in the colony.
There might be some weight in the first of these objections if the crown of Great Britain or the-colonial government had ever claimed this province by right of conquest. But it is matter of history that it was always claimed by right of discovery and not as a conquered country : and that no part of the civil law as such, except that which was derived from England has ever been in force in this colony. The recitals in the patent under which the relator claims title to the mill scite in question, show that the province was granted to the Duke of York as a part of the domains of the crown, several months before the surrender to Sir Richard Nicholl, and before any atltempt had been made to take possession thereof by force. The guaranty to the Dutch settlers of the peaceable enjoyment of their possessions did not alter the nature of the British claim to the country. It was a just and wise policy on the part of the Duke’s government; by it he retained in the colony a great number of industrious, intelligent and valuable inhabitants, of whom and their descendants, even at this day the *446state has much reason to be proud. After a very short strugg[e Qjgy submitted peaceably to the Duke’s claim, and subsequently they obtained patents from the crown for the lands they originally held under grants from the government of the States General of the Netherlands. The territory being thus claimed and established as a British colony, the common law of England became the fundamental law of the province. Although the ancient Dutch customs undoubtedly had some influence in changing the harsher features of the common law in relation to private transactions between individuals, yet as the executive government was generally administered by Englishmen under the direction of the crown, it must be presumed that in all grants of land, and other transactions with its subjects, the government acted upon the general principles of the common law. It lies, therefore, with those who deny its existence in this particular case to show that such was not the law of the colony, at the time of the original grant of the manor of Rensselaerwyck by James the second, or at the time of the confirmation thereof in 1704.
But was there any thing in the local situation of the colony, or of the rivers of this state, above tide water, as they were then known to and used by the colonists, which should forbid the introduction of this principle of the common law, or which necessarily required its abrogation 1 It is true, the claim of the Duke of York extended to that part of the Connecticut river which afterwards formed the eastern boundary of the counties of Cumberland and Gloucester. But that was always a disputed boundary, and the whole state of Vermont was then an unexplored wilderness occupied as a hunting ground by the Maquaas and other tribes of Indians. That part of the Connecticut river could not have been known to the colonists as a navigable stream ; and even as to that the supreme court of New-Hampshire have recently decided this principle of the common law was applicable. Scott v. Wilson, 3 New-Hamp. Rep. 321. The eastern bank of the Niagara and St. Lawrence rivers were in the actual possession of the French, and were equally unknown to the colonists. These rivers could not therefore have influenced them in the adoption or rejection of this principle. The *447principle itself does no appear to be sufficiently broad to embrace our large fresh water lakes, or inland seas, which are wholly unprovided for by the common law of England. As to these there is neither flow of the tide, or thread of the stream, and our own local law appears to have assigned the shores down to the ordinary low water mark to the riparian owners, and the beds of the lakes with the islands therein to the public. What then was there in the situation of the Hudson and Mohawk, with their tributary streams, or any other fresh water rivers which were known to and used by the colonists for the first one hundred years after the capitulation of Governor Stuyvesant which could have induced them to reject this part of the common law of England % For it must be recollected it had not then been discovered that these rivers were made for the purpose of feeding canals. It was even more important here than in England at that time to assign the property of the stream to the owners of the adjacent lands, to enable them to construct dams and erect mills for the benefit of the settlers in a new country. The smallest sloops could not ascend the Hudson more than three miles above tide water; and the Mohawk was cut off by a barrier impassable by any craft whatever. It is said the Mohawk above the Cahoes was navigable with sloops for a considerable distance; and that in several places above Stillwater falls the Hudson was also beatable; but how did they differ in this respect from the Thames, the Severn, the Trent, the Ouse and other rivers in England, which were boatable and used as public highways in many places above the influence of the tide 1 If that was not a sufficient objection to prevent the establishment of such a law in England, why should it have operated against its introduction here 1 The common law made ample provision for cases of this bind, by declaring waters thus useful for the purposes of commerce public highways. Thus, while it assigned to the owners of the adjacent lands the legal title to the bed of the stream, they took it subject to the servitude, or right of the public to use the same for the purpose of navigation. It is on this principle that the people of this state, by their legitimate organ the legislature, constantly exercise the power, *448which formerly belonged to the British crown, of declaring those waters which are thus navigable public highways. They also have the power to regulate the manner of building dams, and other hydraulic erections, so as to preserve this public right of navigation; but they have not the right to destroy the property of individuals for the purpose of making waters navigable which are not so by nature, or of appropriating such waters to the public use by artificial erections or improvements, except upon the constitutional terms of giving to the persons injured thereby a fair remuneration for their private losses. If therefore we had no adjudications on this subject in our own country, I think we should be bound to apply the rule of the common law to the case under consideration.
But if there was any possible doubt on this subject it is removed by the numerous American decisions referred to by Chancellor Kent, and in the reporter’s note to the case of Jennings, 3 Kent's Comm. 346; 6 Cowen's Rep. 543, note. I think those cases show beyond all controversy that this principle of the common law has not only been adopted in this state, but in nearly every other state in the union, where the question has been agitated. It is not necessary to express an opinion whether this principle can be properly applied to some parts of those streams which are navigable from the sea by large ships and vessels, far above the influence of the tides, as that question can never arise in this state. We have no such rivers; and as to the middle sprout of the Mohawk, it is not pretended by the plaintiffs in error that it ever was navigable in any way whatever previous to the erection of the dam in question.
It is supposed by the plaintiffs in error, and introduced by way of argument into the return to the alternative mandamus, that several acts of the legislature granting the right to erect dams in the Hudson and the Mohawk above tide waters, are inconsistent with the right claimed by the owners of land bounded on those rivers; but on examination these acts will be found perfectly consistent with the right claimed. I have already stated that the common law rule admits the right of the sovereign to regulate and protect the natural nav*449igation of such rivers as are public highways above tide water. The north sprout of the Mohawk at Waterford was a boatable stream, and the Hudson above that place, as well as the Mohawk above the Cahoes, had long been used as public highways. It would therefore have been an indictable offence at the common law for owners of the bed of the river to obstruct that navigation without the consent of the legislature. De Jure Maris, ch. 3. It was but a measure of proper precaution on the part of the owners of these mill scites to get the assent of the legislature to erect their dams, in the manner proposed, to protect them against prosecutions for impeding the navigation. The grant to Slilson was probably obtained for similar reasons. From the description of the premises in that patent, I infer that he was the owner of the adjacent shore, and had already erected a mill there. He had probably erected his wing dam in such a manner as to obstruct the floating of timber down the stream on that side of the river, and obtained the grant from the crown to protect himself against a prosecution for a nuisance. The recent grant of a rock at Glen's Falls, where the river never was navigable, and which I believe is included within the acknowledged boundaries of an old patent, and the still more recent act of the canal commissioners in leasing the new isl- and below the Troy dam, can certainly have no influence in determining what the common law was at the time of the patent to Van Rensselaer, granted more than one. hundred years before that time. Notwithstanding this recent act of the commissioners, the president of that board certainly knew the fact that all the islands of any value between Troy and Waterford, which had not been previously granted, were actually held and claimed under that patent.
I have already expressed my opinion that the rule of the common law does not extend to our large lakes. - Of course no argument against the existence of the rule itself can be drawn from the practice of the government in granting the islands in those lakes, or from the grants of the land under water for the erection of wharves and docks.
*450I have adverted thus freely to the existence of known facts, because the return of the appraisers shows that their opinion as to the construction of the patent to Van Rensselaer is founded on matters within their own knowledge, or matters of public notoriety, and not upon any strict legal proofs which were produced before them; and because on the argument this court also decided that it was proper for the counsel to. refer to the report of a committee of the legislature, and other facts of public notoriety, in support of the argument against the right of the relator. There is in truth no disputed fact in this case. Nearly every member of this court must be personally acquainted with the local situation of the premises described in the patent of Rensselaerwyck, so far as to enable him to give it a legal construction; and to those who are not intimately acquainted with the localities, the map annexed to the case will afford all the requisite information. The appraisers, as a matter of law, arrived at the conclusion that the middle sprout of the Mohawk was not granted to Van Rensselaer. It was so argued, and the decision in the supreme court was made upon that point; and I think there is sufficient before us to present the same question of law for our decision.
That the place in question is above tide water; that it lies between the north and south bounds of the patent to Van Rensselaer; that Tibbits has now a clear paper title to it, if it passed by the original grant, are facts not controverted by the return ; and I lay out of question the paroi disclaimer of Van Rensselaer which was made more than thirty years after he had parted with his title, as it cannot possibly affect the rights of his grantee. Some little obscurity is thrown upon the grant to Van Rensselaer by the peculiar manner in which it is worded. On the argument, it was supposed that the bed of the river and the islands within the same were intended to be excluded from the grant; and as the Cahoes, or great falls, is described as being on the Hudson river, it was insisted that all the lands between the west sprout of the Mohawk and the eastern shore of the Hudson were of course excluded. But on a more careful examination of the terms of the grant, it will be found to include the lands in the Hud*451son river, as well as the twenty-four miles in width on each bank thereof. The description of the lands granted commences thus: “All that and those tract and tracts of land called Rensselaerwyck, lying and being in and upon the banks of Hudson river,” &c. “Beginning at the south end or part of Berrein Island on Hudson’s river aforesaid, and extending northerly up along both sides of said river,” &c. Both sides of the river are referred to as forming a base from which the twenty-four miles are to be reckoned each way; but the previous expressions show that the colony of Rensselaerwyck included the islands or lands lying and being in the river as well as the lands on the banks thereof on each side. When it is recollected that this is a confirmation of a previous grant which had been made to the iamily of Van Rensselaer as the head of a colony, and for the benefit of the settlers under that grant, there seems to be no good reason for excluding the islands within the limits of the colony from the operation of the grant. The subsequent words also show that the rights intended to be granted were much more extensive than those usually granted by the crown to individuals : waifs, estrays and royalties are expressly granted ; “ together with all and every the isles, islands, rivers, creeks, runs of water, mines minerals, (royal excepted,) fishings, fowlings, huntings, hawkings and all other royalties, powers, franchises, harbors, profits, commodities and hereditaments to the said premises or any part thereof belonging or appertaining.” The lands lying under the waters of the river are not granted as such, in express terms, and therefore by the rules of the common law that part which was actually covered by the tide waters did not pass by this grant; but I am satified all the islands, and the bed of the rever above tide water, are actually covered by the patent to Van Rensselaer. This being the case, the legal title to the middle sprout of the Mohawk, which is a mile or two below the north bounds of the patent, if it had not been previously conveyed, passed to Van Schoonhoven by the deed of 1792, and is now vested in Tibbits the relator in the court below.
Whether the water-fall in that sprout was of any great value to him before the erection of the Troy dam, and whether *452the damages which he has sustained are greater than the benefits he has received by the construction of the canal, are Questions for the appraisers to decide, and with which we fiave no concern. That question they refused to examine, because from, the legal construction which they put. upon the patent, the title to the land was still in the state. The supreme court decided they were wrong on this question of law 5 and directed them to proceed and ascertain what damage, if any, had been sustained by the present owner of the premises.
It was objected on the argument that the premises in question had not been taken for the use of the canal within the meaning of the act; but certainly the permanent overflowing of the property of an individual to the depth of nine feet, for the purposes of the canal, is as effectual an appropriation of the property for that purpose, and for the use of the canal, as it could be if the canal boats actually floated over its surface.
The appraisers haying refused to decide the question as to the amount of damages, if any, which had been sustained, a mandamus was the proper remedy. I think therefore the decision of the court below was correct, and that it should be affirmed.
By Mr. Senator Allen.The question to be decided according to my view of the subject is, whether the premises claimed by Tibbits are within the boundaries of the patent to Van Rensselaer, and xvhat are his rights and what his title to the middle sprout of the Mohawk river. The patent bears date the 20th of May, 1704, and was issued, therefore, long anterior to the separation of this country from Great Britain. The common law and legislative acts as they existed in April, 1774, are the law of this state except in such particulars in which they have since been altered. All grants of land within this state made by the king of Great Britain, or officers acting under his authority, previous to October, 1775, are declared valid by the constitution. Now, although the common law as it existed in 1774 may be altered or repealed by the legislature to take effect from and after such alteration or repeal, it cannot be so altered as to affect grants existing prior to 1774, *453Ancient grants must be expounded according to what the law was at the time of making them. 4 Comyn’s Dig. 419.
By the common law, fresh water rivers, in which the tide does not ebb and flow, belong to the owner of the adjacent soil, and if a person holds land on the one side of such river he owns the river to the centre, and if on both sides he owns the whole river in front of his property.
In construing the patent of Yan Rensselaer therefore, it is but fair that it should be done with reference to the law as it existed when the grant was made, or at least as it stood in 1775. The patent commences at the south end of Berrien Island on the Hudson river, and extending northerly up along both sides of said river unto the Cahoes or great falls of said river, and extending itself east and west all along from each side of said river backward into the woods twenty-four English miles, with all the rights and appurtenances of said tract and tracts of land, &c. together with all and every of the isles, islands, rivers, creeks, runs of water, &c. and hereditaments, whatever to the said premises or any part thereof belonging or appertaining. A grant shall be extended to every thing comprised within the words, though they are not regularly described in the deed. 4 Comyn’s Dig. 419. No words in the English language can express more fully the absolute conveyance of all the rights, property and hereditaments within the bounds of this grant not previously conveyed. Hereditaments is a very comprehensive word whereby every thing passes which may be inherited, corporeal or incorporeal, real, personal and mixed. 4 Comyn’s Dig. 413.
The grant begins at the south end of Berrien Island, and extends north both sides of the Hudson, unto the Cahoes falls of the said river. The misdescription can only be accounted for upon the supposition that the geography of the country was unknown by the grantor and grantee when the original grant was issued. When the words of an ancient deed are equivocal, the usage of the parties under the deed is admissible to explain them. Livingston v. Tenbroeck, 16 Johns. R. 14. The ancient location therefore, together with the undisturbed possession of the premises ought to be the guide in cases like *454the present. By the map of the state, compiled by the present surveyor general, it would seem that the location eviGently included this stream of water. The northerly line of the manor intersects the Cahoes, and strikes the east side of the Hudson some distance north of the middle sprout of the Mohawk, and therefore includes that sprout within the bounds of the manor. If the patent is to extend as by the description in the grant, from Berrien Island on both sides of the Hudson, until the limits north strike an east and west line drawn from the falls to the Hudson, which I believe was the line by which the manor was originally located, then the middle sprout falls within the patent, as the extension to the west must cover it. If on the other hand we extend the line from Berrein Island up both sides of the Hudson until it strikes the southerly end of Green Island, and then up both sides of the south branch of the Mohawk river, and so up that river to the falls, and thus roll out 24 miles east and west, the extension to the east must cross the Hudson and cover the middle sprout. The middle sprout therefore must be considered as within the patent, and comprehended under some of the words rivers, creeks, or runs of water; and if within the patent, then the title was in Van Ransselaer or in those to whom he conveyed. The descriptive part of this grant, according to my view, is sufficiently full to have justified a.claim even to the land under the waters of the Hudson ; and the fact that the grantee has never preferred such claim does not prove that the grant did not originally cover it. That the common law, as it existed when the patent was granted, gives the grantee the sole right of the streams within its bounds in which the tide does not ebb or flow, I think must be admitted ; and as the stream called the middle sprout is clearly within the patent, was not navigable before the building of the dam, and the tide has never ebbed or flowed in it or over the land under its water, it is equally clear that the title was in Van Rensselaer, and that those who hold under him are legally vested with the fee of the property. Above the flow of the tide the river becomes private, either absolutely so, or subject to the public right of way, according as it is a small or large stream. Ex parte Jennings, 6 Cowen, 518.
*455Two of the canal appraisers, Messrs. Young and Wood, in their return to the mandamus, have attempted to show (not under oath however) that Tibbils had no title to the stream, and state a conversation with Van Ransselaer, in which lie is represented as having said that he he did not consider the stream as included within his patent; but if this was so, how comes it that Mr. Van Rensselaer has omitted to state this fact in his separate return as one of the canal commissioners % Instead of that, he broadly admits that he conveyed the property in question to Van Schoonhoven, and that he is informed and believes that the relator founds his claim to the premises, for which he demands compensation from the state, under such conveyance. One of the appraisers also avers that two of his colleagues, forming a majority of the board, determined that the claimant’s title was not sufficient to entitle him to damage ; but that he differed with the board, and believes now, as he did then, that the relator has a legal and equitable claim to damages, and that he is ready and willing to make an estimate and appraisement of such damages. But, say the plaintiffs in error, even supposing the title of the relator to be good, still he has no property or right which has been so affected as to entitle him to the compensation he claims. The relator, however, declared under oath that the water fall and land under the same is of great value; that the water power at said falls, which existed until the dam was constructed and was destroyed by the rise and flow of the waters in the Hudson river occasioned entirely by the dam, was of great value to him.
Again, it is contended by the plaintiffs that the appraisers were not authorized to allow for damages unless property was taken, and in this case they say nothing was taken from the defendant in error. Upon this principle, a man’s property may be utterly ruined, as in the present case, and because nothing is taken, no redress for the damage sustained can be had. Suppose the dam in the Hudson had flooded the whole of Green Island instead of barely ruining the water fall of the defendant, will it be tolerated, because nothing was taken from the owner, that he must not be remunerated for the injury sustained 1 It cannot be. Individual property cannot be tak*456en, or, which is the same thing, individual rights impaired, for the benefit of the public, without just compensation. Ex parte Jennings, 6 Cowen, 518.
It was contended also that the act of the legislature did not authorize the payment of damages, such as the defendant claims. The act authorizes the taking and using any lands, waters or streams necessary for the canals, and the appraisers are to make a júst and equitable estimate of the loss and damage, over and above the benefit to the owner or parties interested in the premises. It appears to me that a liberal construction of the act would have authorized the appraisers to estimate and allow for the damage done to the defendant in error. If, however, there was any doubt of the law, there was no excuse for refusing to comply with the order of the-supreme court, which was peremptory.
That the legislature of 1828 held the opinion that damage, such as the defendant has experienced, ought to be paid by the-public, is evident from the act passed for the relief of Joseph D. Selden, in a similar case. Selden had, in 1822, purchased a lot of land on the Mohawk river for hydraulic purposes, but the construction of the Champlain canal deprived him of all his water privileges, and the object of his purchase was entirely defeated. .Being one of the acting canal appraisers, he could not of course decide in his own case, and he accordingly applied to the legislature for relief. The result was, that an act was passed on the 18th of March, 1828, authorizing special appraisers to be appointed by the supreme court to assess the damage, and directing the comptroller to pay the amount to be assessed out of the treasury. I am unable to perceive any difference between the case of Selden and that of the present defendant. They both purchased the water privileges for hydraulic purposes, and considered them valuable for the uses intended. The rights of each are invaded for the same object, namely, the construction of a public work from which the state is deriving a revenue. They both derived title from Van Rensselaer, (or those from whom they purchased did,) and why one should be remunerated for the damage sustained, and the other not, it is hard to say.
*457Having shown to my own satisfaction at least, that the original title to the waters of the middle sprout was in the owners of the Van Rensselaer patent; the deed from the present patentee to Van Schoonhoven, and from him to Tibbits, necessarily places the fee of the sprout in the defendant in error; and being of the opinion that serious injury has been done his property by the overflowing of the premises, I think the supreme court were right in issuing a peremptory mandamus, and accordingly am of opinion that their decision ought to be affirmed.
By Mr. Senator Beardsley.The relator not having plead or demurred to the facts set up by the plaintiffs in error, but having submitted the case upon his own affidavit and the allegations of the opposite party, must be considered as admitting the facts stated by the plaintiffs. The case as presented may be assimilated to a hearing on a bill in chancery and answer thereto, and so far as facts are concerned the allegations of the plaintiffs in error must be taken as true. Had the relator wished to controvert the facts, he should have had an issue awarded to try them.
That the return is to be taken as true, and that (he cause must be decided upon the facts set up by the canal appraisers and commissioners, results from another consideration. The relator complains that the plaintiffs in error by erecting a dam for the use of the state, have raised the water in the middle sprout of the Mohawk, and thereby destroyed his water fall. The canal commissioners, by raising the water, have in a measure appropriated it to the use of the state, or have taken possession for the use of the state so far as it is susceptible of possession. The case is therefore like an action of ejectment, in which the person seeking to recover must, as against a stranger or one who holds adversely, recover upon the strength of his own title, and not on the weakness of the title of his adversary. Besides, it is a general rule in regard to a return to a mandamus, that it must be taken as true unless controverted. The relator not being in actual possession, (which would have been prima facie evidence of ti-*458tie) produced his paper title which was deemed insufficient by the canal commissioners, who denied his right, and asserted a title in the state.
The relator alleges that the middle sprout is included in the patent or manor of Rensselaerwycb, and unless he sustains his allegation there is an end of the question, because the only title set up is under that patent. It is.alleged by the commissioners that General Van Rensselaer, the present owner of the patent, never claimed the locus in quo; and they state the circumstances under which a deed was obtained from him. This, although a circumstance against the claim, is not conclusive, because, if included within the patent, the relator acquired an interest which canot now be defeated by the disclaimer of the patentee; and if he-has acquired an interest, it is probably such an one as would entitle him to damages under the laws of the state, unless, by neglecting to take possession, he has lost his right to assert a claim agains.t the state as prior occupants, a question which it will not be necessary now to d’ecide.
The boundaries of the patent are as follows: “All that and those tract and tracts of land called Rensselaerwyck lying and being in and upon the banks of Hudson’s river in the county of Albany, and theretofore called the colony of Rensselaerwyck, beginning at the south end of Berrein Island on Hudson’s river aforesaid, and extending northward up along both sides of the said river unto a place theretofore and yet called the Cahoes or the great falls of the said river, and extending itself east and west all along from each side of the said river backwards into the woods twenty-four English miles.”
It was admitted on the argument that the grant did not include the bed of the river, and the expression “ in and upon the banks of the Hudson river” means nothing more than in the vicinity or upon the Hudson river. But the subsequent terms of description “ extending northward up along both sides of said river,” render it not only probable but quite certain that the bed of the river was not intended to be included. Now as the case comes before us we are left entirely in the dark as to the actual location of the patent. It is a rolling patent, and is to run up the banks of the Hudson river to the Cahoes *459falls in said river, and to roll back east and west from the river 24 English miles.
Probably when the first grant of the manor was made, (which was at an early day, for the confirmation took place about 120 years since,) the south or west branch of the Mohawk was supposed to be the Hudson, or part of the Hudson river. It runs parallel with the Hudson, and the country being then a wilderness, this branch of the Mohawk might easily have been mistaken for part of the Hudson. At all events, the Cahoes falls is a well defined and permanent object, and although said to be on the Hudson river, in absence of all proof of actual location, may, I think, be adopted as a starting point. And if the patent was now to be located I am of opinion that under the decisions of our courts, the falls being a permanent object, might be adopted as the boundary from whence to run west, without doing violence to the sense of the grant. If this be so, the islands and tongue of land between the Mohawk and the Hudson would be excluded from the patent, and so also the water fall claimed by the relator; and having failed to show the location of the patent and an actual possession of the water fall, it would seem to follow that he had failed to establish his right to damages.
This being a question between an individual on one side and the state on the other, and involving the construction of a grant, every intendment is to be made in favor of the state. Comyn's Dig. tit. Grant, G. 7, 12. The dam in the Hudson river which causes the injury complained of is erected where the tide ebbs and flows, and is therefore in a navigable river, an arm of the sea, according to common law acceptation, and belongs to the state; and being erected for public improvement, every reasonable construction is to be made in favor of the public against private rights. Comyn’s Dig. 3 M. 37.
This view of the case, if correct, shows that the judgment below ought to be reversed.
Here perhaps I might stop without examining the points so ably discussed by counsel on the argument in relation to the rights of parties to rivers or land covered by water under the common law doctrine of usque filum aqua. It has appeared *460to me that in the present case that question could not prop-e].jy arjse . j)ut as tile supreme court seem to have founded the order for a peremptory mandamus upon the doctrine in the case Ex parte Jennings, 6 Cowen, 518, and as this doctrine has been discussed with great ability, and has been relied upon by counsel as having an important bearing in the present controversy, it may, perhaps, be proper not to overlook that part of the argument.
As a general remark, it will be found correct, that the colonial government, as well as the present government of this state, in granting lands on navigable fresh water rivers, and in many instances those not navigable, have studiously avoided granting the river itself or the bed of the river, probably anticipating that they might be wanted for public purposes.
The supreme court have adopted the common law doctrine in regard to rivers. Harg. Law Tracts, p. 6. Ex parte Jennings, 6 Cowen, 518, ra. They consider the term “navigable” as technical when applied to rivers, and that fresh water rivers above the flow of tide are not navigable within the meaning of the common law. Hence they assert and carry out the principle, that when lands are owned by the same individual on each side of a fresh water river, he owns the bed of the river, and if bounded on one side of the river he owns to the centre. This is undoubtedly the common law doctrine in regard to individuals as between each other; but I very much question its correctness when applied to the rights of the stale. Almost the whole current of legislation in this state in regard to navigable rivers is adverse to this principle. The state has granted islands in (he Hudson above tide water, which, by this construction, would have passed by implication to the owners of the adjacent lands which had been previously granted. Palmer v. Mulligan, 8 Caines, 312, Spencer’s opinion. They have also granted islands in the Seneca and Oswego and Niagara rivers, which by the common law doctrine would also have passed to the owners of the lands lying on the opposite shores. So also the legislature have recently granted privileges to use the waters of the Mohawk to individuals, and have exercised *461acts of ownership and sovereignty inconsistent with the common law doctrine. Grant to McIntyre and others, Statutes, 1817, p. 296. These repeated acts of legislation are referred to by the canal commissioners, and are also collected in the report of the committee of the assembly in 1827. Assembly Journal, 1827, p. 954.
It may be doubled whether the common law rule in regard to navigable fresh water rivers ever was adopted in this stale. Smith, in his History of New-York, says part of the common law was adopted and part rejected, and that the colonial courts exercised a sovereign authority in determining what part of the common law was to be adopted. Smith’s History of New-York, 371, 2. This state was originally settled by the Butch, who brought with them from Holland the civil law, and by this law the bed of rivers where grants are bounded on the margin of the stream belongs to the public, and the grantee goes to the water’s edge, and not to the centre of the river; and this is applicable to all rivers, as well fresh as salt. Such also is the law of France, the code Napoleon having applied the civil law doctrine to all streams that are floatable, as that code expresses it. This state was not settled by the English, but was conquered by them; and it is a well established rule of the common law, that when an uninhabited country or island is discovered and settled by Englishmen, they carry with them the common law; but where a country is conquered by the English, the laws of the conquered country remain in force, unless the laws of England are substituted by express enactment. 1 Black. Comm. 189. 2 Salk. 411. 2 P. Wms. 75, 76. This state, as an independent state, adopted “such parts of the common law of England and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New-York, as together did form the law of said colony on the 19th of April, 1775.” Art. 35 of old Constitution, and 13th sect, of 7th art. of new C. To apply the common law to navigable fresh water rivers in this state, it must be shewn that the British parliament or the legislature of the colony of New-York adopted it. This, it is believed, cannot be shewn; and if it could, it would be necessary in the present case to *462shew that it had been adopted at the time of the confinnatjon Qf t^e grant) otherwise the patentee would take under the law as it then existed. 4 Comyn's Dig. 419.
The Mohawk and Hudson have always been used for navigation, and I cannot, in direct opposition to legislative grants and constructions, apply the common law principle to these livers, where the application of the rule is against the rights and interests of the state. If it was a question of fishery, or a contest between individuals, it might be a different question in principle, but it is not necessary to discuss that point at present.
In regard to salt water rivers where the tide ebbs and flows, the common law considers, them arms of the sea and navigable, in which the public have an absolute interest or right of navigation and fishery. They are considered as belonging to the sovereign, who holds them for the benefit of all his subjects. To these rivers or arms of the sea the common law and the civil law apply the same rule. The owner of adjacent lands goes to the water’s edge. The rivers in England above tide, in point of fact, are not navigable except for small craft; reasons therefore exist in that island for the common law rule which have no existence in this country. It is contrary to fact to assert that our immense fresh water rivers are not navigable; and it is matter of just exultation, as well as benefit to the country, that in the United States we have rivers which above tide are navigable to a greater extent than would be the circumnavigation of the United Kingdoms of Great Britain and Ireland. It is therefore preposterous to contend that the limited doctrines of the common law are applicable to the Mississippi, Ohio, Susquehannab, Niagara and St. Lawrence. If applicable, the owners of land on these streams have a right to go to the centre of the rivers, and Grand Island in the Niagara, with 18,000 acres, w7ouId belong to the owners of the shore.
In Massachusetts and several other states, in controversies between individuals the common law has been applied to their rivers. These states were settled by the English, who brought the common law with them; and they may have felt constrained to make an application of its maxims to this country. *463But even there, had the question been between the state and an individual the decision might have been different.
Rules of law should be adapted not only to the moral but to the physical condition of the country. Had the common law originated on this continent we should never have heard of the doctrine that fresh water rivers are not navigable above the flow of the tide; nor would our courts of justice have been called upon to compromit the interests of the community by sacrificing truth to technicality and substance to form.
Pennsylvania and South Carolina have rejected the rule of the common law as regards navigable fresh water rivers, and the reasoning of the judges appears to be sound and liberal, and applicable to the situation and interests of this country. 2 Binney, 25. Carson v. Blazer, 14 Serg. & Rawle, 71. 1 McCord’s Rep. 580.
In controversies between individuals our supreme court has frequently recognized the rule of the common law as applicable to our rivers, Palmer v. Mulligan, 3 Caines, 312; Platt v. Troup, 15 Johns. R, 216; Hooker v. Cummings, 20 Johns. R. 90; but these cases maybe distinguished in principle from the present where the state is a party; Jennings’ case is the first in which the court has recognized the applicability of the doctrine to the state, 6 Cowen, 518. On an examination of the English authorities it will be found that they are almost exclusively in controversies between individuals, in which the rights of the government did not come in question.
The result of my reflections is, that where patents have been bounded on navigable fresh water rivers in this state, and nothing appears from the grant that the state intended to part with the bed of the river, the patentee shall not by an implied grant take the river to the exclusion of the state. For this reason as well as that the relator has not shown an actual possession, or that the middle sprout was within the bounds of the manor as located, I am for reversing the order of the supreme court.
By Mr. Senator Benton.The proceeding by mandamus is undoubtedly a proper remedy, if the relator has right, and the title is undisputed or admitted. But this court has no evidence of the title of the relator save his own statements, *464and those unsupported by documentary or other testimony. i10vvever, if admitted by the parties against whom the proceedings are instituted, would probably be deemed sufficjent to sustain the relator, and warrant an order or rule for a mandamus; but if the facts are denied, I take it the party is bound to make out his title, establish his right, or prove the truth of his allegations, as well in this as any other proceeding at law. It is a little strange that the testimony submitted to the appraisers was not in some shape brought before the court below, and if brought there it is more strange- that it has not been incorporated in the case and submitted to the consideration of this court. This court are now called upon by the parties to pronounce judgment upon a matter of right and a question of title in a most summary, and to me, in a most unsatisfactory manner.
Although no formal issue by pleading has been presented by the parties to this proceeding, I understand the plaintiffs in error to have denied so much of the relator’s statements, as to preclude his recovery or to oust him of his right to a peremptory mandamus unless he make out his case by proof other than his own oath. The relator in his affidavit states that the appraisers, after receiving testimony, have refused to assess or allow any damages to him on account of the injury alleged to have been sustained by him, assigning as the sole reason for such refusal, that he had no legal claim to the land under the water of the middle sprout; and the appraisers in their return state, that having required the production of the relator’s title and carefully examined the patent with their knowledge of localities, they were clearly of opinion that the middle sprout of the Mohawk is not embraced within the boundaries of the patent, and that the relator had entirely failed to make out any title to the middle sprout.
Did the appraisers pronounce their decision upon the facts now before this court ? Clearly not; they expressly negative such an inference, because they speak of their knowledge of localities. Have this court the knowledge of the facts here alluded to I I think not. Then if the appraisers had the constitutional and legal right to adjudicate upon the title, and if this be a legal and constutional mode of trying such *465questions, a proposition which I shall by and by discuss and examine, have they determined the law of this case upon the facts set forth in the affidavit and return 1
It was admitted upon the argument, and to this admission we may advert, to see whether there are not some facts which are not in the case before us, that the patent of TLensselaerwyck begins at the south end or" part of Berrein Island below the city of Albany, and that one of the islands on which the sprout is bounded is not within or claimed under the patent, (whether Green or Van Schaick's island is not known to me.) The patent locates the whole tracts as lying and being in and upon the banks of the Hudson river, and extending from the point above mentioned northward up along both sides of the said river, unto the place theretofore and yet called the Cahoes or the great falls of the said river, and extending east and west, all along from each side of the said river, backwards into the woods, twenty-four English miles. Now, without doubt, if a fact clearly notorious can be relied upon, this patent commences below the head of tide water on the Hudson; but how far below, and at what point on the Hudson the tide ceases to ebb and flow, and on the Mohawk if the tide ebbs and flows there at all, is not so clear and undoubted to my mind. I apprehend the title of the relator, if the common law rule of construction as set up be admitted, must depend upon the construction to be given to the patent under which he claims; and I cannot perceive how this court can give a just and legal construction to it without a better knowledge of localities relating to it than what is presented by the testimony in the case.
Did the patentee by his grant expressly and not constructively take to the middle of the Hudson river at the south end of Berrien Island 1 If he did not, then by no rule of construction known to the civil or common law could he take ad jilum aqua, because at this point the Hudson is a navigable stream in the common law acceptation of the term, and here the tide ebbs and flows. He then is bounded in and upon the banks of the river at high and low water mark, and keeps upon those boundaries northward; but where are the ter*466mini above or below the middle sprout 1 Where do the banks of the majestic Hudson cease to be the real and known, and not the ideal boundary 1 and where, at what point in traversing this river northwardly, may the grantee of this patent by construction claim to the centre of the river i
From the map which has been furnished to the court and which makes a part of the case, there appears to be laid down upon the same Fish Island and Jan Goivsend Island, besides those before mentioned, together with several smaller ones not designated by name, lying in the Hudson river opposite Green and Van Schaick’s Islands ; and if we were informed by testimony who claimed these islands and under what title they are held, we should be materially aided. It must also be recollected that this patent is what is sometimes termed rolling; it extends twenty four English miles from the banks of the river east and west; and what location has the patentee taken 1 how has he located it ? If he has started from the Cahoes or great falls on the west bank of the Mohawk river, and run thence west the given distance for his quantity on the west side of the Hudson, or rather in fact the Mohawk, and then started from a corresponding point on the east bank of the Hudson river and run his distance eastward, both of which points are north of Van Schaick’s Island, can he, by virtue of his grant on the west side of the Mohawk, claim any farther than the middle of the stream laid down as the south branch of the Mohawk, or any farther than the middle of the Hudson by virtue of his grant on the east side of this river; and this too when We know, if admission can inform us, that he never claimed one of the islands bounding the premises claimed by the relator, and which are supposed to be south of the head of tide water and the north bounds of the patent 1 This rule of construction is not warranted by the common law. But pursuing the same course of reasoning, and admitting for the present the ground of construction assumed by the relator to be correct, I do not find, by any fact stated or admitted, that he owns a foot of the soil either on Green or Van Schaick’s Island, or ever has owned any part of either contiguous to the premises. He sets up a claim to land under water, between these two pieces of *467land, called the middle sprout. If the patent of Rensselaerwyck is set up to cover some part of the premises and one of the islands contiguous, then it becomes material to inquire when and to whom this island has been granted by the patentee or his heirs; for if the legal title to this other island is in some stranger to this proceeding under a deed of anterior date to the relator’s, it would be strange if in due time another claimant for damages should not appear. Sir Matthew Hale lays down the rule, that above tide water, “ fresh rivers, of what kind soever, do of common right belong to the owners of the soil adjacent usque filum aqua; and the supreme court, in the case of Jennings, say the rule to be collected from the books is, “ that the owner of the land on the margin owns to the bed over which the river passes; and though it be nominally and in terms bounded on the margin, it extends by construction of law to the centre of the stream.” Upon this latter position as to the facts, understanding them in the light above stated, it is difficult for me to perceive how the appraisers could have come to a different conclusion in respect to the relator’s title, even when the above rules are applied,
Having thus far endeavored to shew, from admissions and deductions from facts stated, that we are called upon to de^ cide a very important case in point of principle, upon evidence which, if it does not clearly shew the relator has no, title, fails of shewing satisfactorily that he has a right, I will proceed to examine a point in the case which I deem it my duty to present to the consideration of the court,
The second section of the seventh article of the constitur tian of the state is as follows: “The trial by jury, in all cases in which it has been heretofore used shall remain inviolate forever; and no new court shall be instituted, but such as shall proceed according to the course of the common law, except such courts of equity as the legislature is herein authorized to establish,” This section presents a difficulty which, in my judgment, .cannot easily be surmounted. The language cannot well be misconceived. The trial by jury, as heretofore used, shall remain inviolate forever, and no new court shall be instituted but such as shall proceed according ¡to the *468course of the common law. Two questions arise under this provision applicable to the case now under consideration ; and if I do not mistake exceedingly, present an insurmountable barrier to the affirmance of the judgment of the court below, aside from the other objections.
The individuals entitled to the damages to be estimated and appraised, are the “owners and proprietors or parties interested in the premises,” and none other. In ordinary cases it may be presumed there would be no difficulty or dispute concerning the title or the right of the party whose property may have been taken for the public use, but that cases should occur in which there might be doubt on this point, is in the nature of things very probable; and this circumstance rendered it highly proper that the appraisers should be well satisfied that the party who preferred a claim for damages should have a subsisting legal title to the subject matter appropriated, destroyed or damaged.- It is their duty as public officers to make this inquiry; and if not fully satisfied upon this point, ought they to proceed and make an assessment 1 I apprehend not, because no one appears who is authorized to receive the compensation, and whose title by the payment of the money assessed would be transferred to the state. If the act of 1825, sess. 48, ch. 275, is deemed to constitute the board of appraisers a tribunal authorized to hear, try and determine a question of title to lands or real estate in a summary way without the intervention of a jury, and not according to the course of the common law, with the greatest respect for the authority that gave this act a being, and for the judicial tribunal which may have sanctioned such a construction, if any such has been given to it, I must in this place give it as my deliberate opinion, that in this respect the act is unconstitutional and void.
But such ought not and cannot be the fair construction of this act. The legislature never intended to create a tribunal to pass upon the rights of the citizen in the mode prescribed, and it cannot have been intended that the rights of the state upon doubtful questions should be thus summarily determined and compromitted; such an assumption cannot be taken *469without strong and conclusive evidence of the fact, the act in question afford this evidence 1 I think not. Does
The proceeding by mandamus to call on the appraisers to show cause is no doubt correct and proper; and if upon the return the question of title is not denied but admitted, I see no objection to the court’s proceeding to examine into the sufficiency of the return relating to the acts of the appraisers, or any other matter which does not involve a question of title ; and when this question arises, or any fact is denied by the return, in the latter case the relator must resort to his proofs upon an issue, and in the former, as he can have no claim of right by presumption, he must pursue his remedy according to the course of the common law and by the intervention of a jury. The board of appraisal are not a judicial tribunal; they are not constituted to discharge any one judicial function in the proper acceptation of the term. The appraisers cannot sit or make any valid estimate and assessment without having one of the canal commissioners, as an agent of the state, to advise and act with them.
The judicial history of this state leaves no doubt as to the cases in which the trial by jury has heretofore been used; and it appears to me it cannot be dispensed with in the ordinary proceedings of the common law courts without jeopardizing and endangering our institutions. The naked right and title to real estate between individuals was never adjudicated upon in our courts of law except upon the finding of a jury; and I hold it inexpedient and improper to do so in any case where the state is interested, or a party, and where the matter, as in these cases, is one involving title only. The necessity for an inquiry into the title is more apparent from the fact that the fee simple of all premises appropriated, .and in relation to which an estimate and appraisement shall have been made and recorded, is declared to be vested in the people.
The legislature have authorized a writ of error from any decision of the supreme court touching cases of this kind, whether the decision be made upon any case arising upon mandamus dr otherwise; and although no pleadings were had or issue joined in the cause. Laws of 1827, ch. 219, § 42, *470and 1 R. S. 235, § 97. This provision, however, does not avojc[ the objection which arises in this cases from the state of facts presented by the appraisers’ return and the other part of the case; it confers a right which did not previously exist, otherwise there was no necessity of legislative enactment upon the subject. The parties are left to the usual legal mode of establishing and controverting the matters in dispute without any statutory provision to direct and control them. Upon this latter view of the case, it might be proper to dismiss the writ of error and send the parties back to the court below to correct and amend their proceedings, and permit them to come again before this court with a special verdict on the pleadings and issue upon the mandamus ; and if the decision of the cause in this court should turn upon the point here raised and discussed, it would seem but equitable, as the point was not raised and discussed upon the argument. It being a question, however, of grave and solemn import in my judgment, I have deemed it my duty to present it to the consideration of this court.
But being clearly of opinion that the relator has shown no legal title by competent proof to the premises, in regard to which he alleges he has been injured and claims damages, I think the judgment of the supreme court should be reversed, with costs, to be paid by the relator; holding that it was his duty to look into the appraisers’ return, and if he found the facts upon which he must rely for a recovery, or his title, denied, he was bound to shew in himself a subsisting right. The force of the negation contained in this return cannot, I apprehend, be weakened or destroyed, because the appraisers have gone into a legal argument repudiating the principles of the common law of England concerning rivers as applicable to this state. It is evident that these officers reposed themselves in refusing to make an estimate and assessment upon the facts of the case, as well as the law applicable to the facts; but the facts, as I have before attempted to show, we have not before us.
Under this view of the case, I do not feel that it is necessary for me to examine and pronounce an opinion upon the important question raised and argued, whether the law of *471England concerning rivers is or is not the law of this state; argued with much ability and apparent confidence by the counsel for both parties. The decision of this question by this court is no doubt a matter much to be desired, but I do not feel warranted to presume a state of facts for the purpose of applying a rule of law.
By Mr. Senator Tallmadge.The facts in this case are very imperfectly presented. This perhaps results from the mode of raising the question. They are, in the first place, set forth in the ex parte affidavit of the relator, on which the mandamus was granted. He, of course, states nothing more than he deems necessary to make out the case on his part. The canal appraisers, in their return, present such facts on their side as they consider material to the defence, and in answer to those charged in the affidavit; and that too, in a. somewhat diffuse and argumentative manner. In this way, it is hardly to be presumed that the court can be possessed of facts sufficient to enable them to come to a satisfactory decision on the merits, on a question of so much importance— a question, if we may judge from the very elaborate arguments submitted to us, involving not only the location of the patent of the manor of Renselaerwyck, but the all-important doctrine of the common law, in its extended application to the rivers and inland waters of this state. These are questions of great magnitude, upon the examination or decision of which, were the case fully presented, any court might well enter with great caution and circumspection; but which, I apprehend, this court will be altogether disinclined to entertain or determine, upon the very imperfect state of facts before us.
By affirming the order of the supreme court granting a peremptory mandamus, we undertake to locate this patent; and that too without a particle of evidence as to what has been its practical location. We must do it merely from the descriptive words in the patent; and if we determine that it comprehends the middle sprout, we at the same time adopt the conclusion that it covers Van Schaick’s Island also, which it is conceded was granted long before. If, too, in the lan*472guage of the patent, it extends itself from the Cahoes east and west along from each side of said river backwards into ^e woods twenty four English miles, it will include a part of the county of Saratoga, which no one pretends was ever in-eluded in it. Without intending to express an opinion as to its location, I have merely alluded to these facts to shew that from a want of evidence before us it is improper, if not impossible, to undertake to decide that question.
There appears to be one view of the subject, which must be sufficient to decide it, without going into those more important considerations. As a preliminary to establishing a claim to damages, the relator is bound to make out a title to the middle sprout of the Mohawk, on which the water fall is situate, which is said to have been destroyed or rendered useless. How is this done 1 He sets forth his title, such as it is, in his affidavit upon which the motion for an alternative mandamus was founded. This title consists of a deed from Stephen Van Rensselaer to Jacobus Van Schoonhoven, dated May 5th, 1792, conveying the land under water of the middle sprout, &c. and of other mesne conveyances down to the relator. These conveyances, he contends, are admitted by the return, and make out a title in him to the middle sprout. The canal appraisers, so far from admitting the title of the relator, expressly deny it. They state that he exhibited before them his conveyances, meaning, no doubt, the conveyances mentioned in his affidavit, and also an exemplified copy of the patent of Rensselaerwyck, as a necessary link in his chain of title. This patent is not set forth in the affidavit of the relator, and we hear of it for the' first time in the return. If we could look no farther back than the deed from Van Rensselaer to Van Schoonhoven, and there was no other evidence in the case, the relator might claim to have a made out a title. His affidavit goes? no farther. It does not shew, as was shewn to the canal appraisers, that he claimed under the patent of Rensselaerwyck. This fact appears from the return. His title, therefore, depends not solely upon the conveyances set forth in his affidavit and admitted by the return, but also upon the question whether the patent of the *0manor of Rensselaerwyck comprehends the middle sprout; and that depends on the location of the patent. They add that after carefully examining this patent with their lrnowledge of localities, they are clearly of the opinion that the middle sprout of the Mohawk is not embraced within the boundaries of the patent, and that the relator had entirely failed to make out any title to the middle sprout. They then proceed to assign their reasons why he has made out no title. Among other things they state, that before the execution of the deed from Van Rensselaer to Van Schoonhoven, the former disclaimed all title to the premises, and did not consider them included within his patent. Whether this disclaimer can be received in evidence to defeat the relator’s title, or whether, were the case before a jury, it might, with other facts," be submitted to them to shew the practical location of the patent, it is not necessary now to determine.
The question is whether the relator has established a tille ? The mere exhibition of deeds of conveyance does not of itself make out a title. Had these deeds been introduced before a jury on a trial at law, they would have been received in evidence, because proved or duly acknowledged; but the question of title would yet have remained open, until it was shewn that the patent by its practical location or otherwise comprehended the premises in question. The appraisers in their return admit no more than that those deeds were duly executed, but deny that they convey any title to the relator, because the patent under which he claims to derive his title, does not include the premises.
The court cannot reject any part of the return provided it is pertinent. If the relator intended to controvert it, he should have taken issue on it. This he has not done. He has not traversed the return, neither has he demurred to it; unless his application for a peremptory mandamus be considered equivalent to a demurrer. If so, then the facts in the return are admitted, and it is now too late to controvert them. In this point of view then, how does the case stand 1 We are not to presume that the relator has made out a title merely because he has set forth his conveyances in his affidavit. The court can look only to the return. When that comes in, tpe affidavit has performed its office, and the return alone c0llta*ns the facts on which the question is to be decided,
The relator is bound to make out his case affirmatively. How is this to be done 1 In the first place he should have presented to the appraisers, not only the exemplified copy of the patent, and the conveyances from Van Rensselaer down to himself, but he should also have offered evidence before them of the location of the patent, so as to shew, that in point of fact, it comprehended the premises in question. If, after this, they refused to allow him damages, the supreme court, on affidavit of these facts, would have ordered an alternative mandamus. If their return to this writ were not full and ample, he could, on application to the court, have compelled a farther return. If it were untrue, he could have traversed it. But, unless the return itself, if it he not traversed, shews sufficient to entitle the relator to damages, a peremptory mandamus cannot be awarded; for the court can look to nothing else.
The question therefore is, whether the return contains sufficient to authorize a peremptory mandamus'? If not, then the appraisers have shewn cause why it should not issue. If the relator is entitled to damages, he has it in his power not only, but it is his duty to shew it. The statute makes ample provision for this. The act, 1 R. L. 107, provides that when a return is made to a mandamus, it shall be lawful for the person suing or prosecuting such writ to plead to or traverse all or any of the material facts contained within the return ; to which the person making the return shall reply, take issue or demur, &c.; and if a verdict shall be found for the person suing out the writ, or judgment shall be given for him upon the demurrer, &c. he shall recover his damages and costs. The affidavit of the relator contains nothing in relation to the actual location of the patent; neither does the return, except a denial that the patent covers the middle sprout; but it contains all the facts that the appraisers were bound to state. They too are alleged in broad terms, and are, in my opinion, sufficient to justify the appraisers in refusing to assess damages. If the relator did not intend to *473controvert them he should have demurred. This was held to be the correct practice in the case of The People, ex rel. Shaut, v. Champion and others, Commissioners of Highways of Danube, 16 Johns. R. 61. To the return of the commission- . ers in that case there was a demurrer; on the argument it was objected that it was irregular for the relator to demur to the return, but Spencer, justice, said, “The act authorizes the party prosecuting to demur ; for a demurrer is a plea, and it would be absurd to require a traverse of the return, when the facts are truly stated.” The same principle has since been recognized by the supreme court in the case of The People v. The Judges of Jefferson county, 2 Wendell, 301. Morey, justice, says, “ Even this court, on the coming in of the return, were not prepared to say that a peremptory mandamus ought to issue, but directed the relators to demur, so that the law of the case might be looked into.”
The court cannot with safety adjudicate on such important rights as are involved in this case, unless they are presented more fully and in a more definite and tangible shape. The return itself shews that it was never contemplated that a question of this magnitude was to be determined in this informal manner; for the appraisers in conclusion say, “ it is hoped that the hasty suggestions which have been made will indicate the propriety of a more careful investigation and solemn decision than can be obtained on the ex parte application of interested individuals.”
The correct rule undoubtedly is, that when a return is made to a mandamus, the person suing or prosecuting the writ should either plead to or traverse the facts contained in the return. In the present case the relator should have demurred, if the facts were not disputed, or he should have traversd them, if he intended to controvert them. Not having done either, the most favorable light for him in which the case can be viewed, is to consider his application for a peremptory mandamus equivalent to a demurrer. If so, the facts in the return are admitted, and the relator’s title is not established. Had he not considered the facts truly stated, he had it in his power to traverse the return and carry the cause to a jury for their investigation, where the vast variety *474of facts which must necessarily exist in relation to the locatjon tins patent might have been definitely and legally presented. After their determination, the supreme court could have done justice to the relator according to the precise ascertainment of his rights. As it is, we are left altogether to conjecture as to the correct location of the patent; the return, if it does not absolutely shew the title out of the relator, certainly does not shew it in him ; and this question being entirely unsettled and undetermined from aught that appears in the case, and the relator having failed to traverse the return, it appears to me that he has not brought himself within the act to entitle him to damages.
My opinion therefore is, that the order of the supreme court granting a peremptory mandamus ought to be reversed and annulled. This being done, I see no objection to giving leave to the relator to traverse the return to the alternative mandamus.
On the question, Shall the rule or order of the supreme court allowing the writ of mandamus in this case be reversed % the members of the court voted as follows :
For affirmance—The Chancellor, and Senators Allen, Boughton, Bronson, and Oliver—5.
For reversal—Senators Armstrong, Beardsley, Benton, Conkling, Deitz, Enos, Gere, Hubbard, Mather, Maynard, McLean, McMartin, Rexford, Sherman, Tallmadge, Throop, Todd, Warren, Wheeler, and Woodward—20.
Whereupon the order of the supreme court was reversed, with leave to the relator to plead.