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that place to the carrier authorized by It follows from what we have said defendant to receive the coal consti. that plaintiff is entitled to recover the tuted a delivery to defendant. The contract price of the coal and that deLouisville & Nashville Railroad was fendant, under proper pleadings, is the agent of defendant because it was entitled to recover from defendant the the only carrier to which delivery damages, if any, it sustained as a recould be made, and since it was such sult of plaintiff's breach of an indeagent, delivery to it, though not made pendent condition of the contract." in full compliance with the shipping In Murphy V. American Can Co. instructions, nevertheless constituted (1907) 106 Md. 190, 67 Atl. 17, the delivery to defendant. The coal be- court held that even if delivery of came the property of defendant at goods to a particular schooner was Belleville, subject only to the right of not authorized, the conduct of the stoppage in transitu, and defendant's buyer in retaining a bill of lading refusal to receive it at St. Joseph was therefor amounted to a ratification of but a refusal to take charge of and the delivery so as to transfer the have dominion over its own property. property to the buyer.

R. S.

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on

(237 N. Y. 117, 142 N. E. 437.) Injunction against trespass on shore of lake. .

1. Injunction lies at the suit of the owner of land between high and low water mark on the shore of a nontidal navigable lake, to prevent trespass thereon by persons in pursuit of wild fowl.

[See note on this question beginning on page 978.] Waters conveyance of land bounded - grant runs to low-water mark. extent of grant.

4. A grant by the state of a farm 2. A conveyance by an individual lot on the side of a nontidal navigable owning to the center of a nontidal lake, 38 miles long and from 1 to 6 stream or lake or pond, of land bound

miles wide, carries title to low-water ed thereon, or of a tract with refer

mark, where the map by which the ence to a map showing the tract to be

grant was made shows the lot as abutso bounded, carries title to the center.

ting upon the lake. Public land conveyance of land

[See 4 R. C. L. 95; 1 R. C. L. 1058. ] bounded on water — extent.

Boundary

on lake extent of 3. A conveyance by the state of land bounded on natural streams, lakes, or

grant. ponds ordinarily carries title to the

5. A conveyance of land described center, except in special cases, such as running to a lake and thence along possibly as a small grant on the shore

the shore of the lake carries title to of a lake 1 to 3 miles wide.

low-water mark where the grantor [See 4 R. C. L. 93, 94; 1 R. C. L. owns to that point. Supp. 1057; 27 R. C. L. 1363; 4 R. C. [See 4 R. C. L. 95; 1 R. C. L. Supp. L. Supp. 1793. See also note in 23 1058.] A.L.R. 794.]

(Hogan, Cardozo, and Crane, JJ., dissent.)

APPEAL by plaintiffs from a judgment of the Appellate Division of the Supreme Court, Fourth Department, reversing a judgment of a special (237 N. Y. 117, 142 N. E. 437.) term for Cayuga County (Stephens, J.) in their favor and dismissing the complaint in an action brought to enjoin defendants from hunting on certain premises of which plaintiffs are the lessees and on which they claim to have exclusive hunting rights. Reversed.

The facts are stated in the opinion of the court.

Mr. Frank S. Coburn, with Mr. Har- title to the bed of Cayuga lake, inry Gleason, for appellants:

clusive of the shore, is vested in the It appearing by the conveyance to people of the state of New York. plaintiffs' grantors that the west line Geneva v. Henson, 140 App. Div. 49, of the property in dispute extended 124 N. Y. Supp. 588, 195 N. Y. 447, 88 along the shore of the lake, plaintiffs' N. E. 1104, 202 N. Y. 545, 95 N. E. title passed to low-water mark, and, 1125; Chism v. Smith, 174 App. Div. regardless of riparian rights, the 332, 160 N. Y. Supp. 813; Champlain judgment of the trial court was prop- & St. L. R. Co. v. Valentine, 19 Barb. er.

484; Canal Comrs. v. People, 5 Wend. Ledyard v. Ten Eyck, 36 Barb. 125; 447; McBurney v. Young, 67 Vt. 574, Canal Comrs. v. People, 5 Wend. 446; 29 L.R.A. 539, 32 Atl. 492; Austin v. Champlain & St. L. R. Co. v. Valentine, Rutland R. Co. 45 Vt. 215; Fletcher v. 19 Barb. 491; Child v. Starr, 4 Hill, Phelps, 28 Vt. 257; People v. Kyser, 369; Geneva v. Henson, 195 N. Y. 463, 78 Misc. 68, 138 N. Y. Supp. 801; West 88 N. E. 1104; Halsey v. McCormick, Virginia Pulp & Paper Co. v. Peck, 13 N. Y. 296; Yates v. Van De Bogert, 82 Misc. 72, 143 N. Y. Supp. 720, 104 56 N. Y. 531; People v. Kyser, 78 Misc. Misc. 172, 171 N. Y. Supp. 1065, 189 68, 138 N. Y. Supp. 801; Wheeler v. App. Div. 286, 178 N. Y. Supp. 663. Spinola, 54 N. Y. 385.

When lands are bounded upon the Mr. Nelson L. Drummond, for re- bank, the title does not go to the water. spondents Turney, Dooley, & Heff, who Clement v. Burns, 43 N. H. 609. were represented by Messrs. Drum- It is the contention of the state, asmond & Hosmer:

serted and proceeded on by the deWhere the title to the lands or the partments thereof, that on the navibeds of the waters in question is gable bodies of water in the state the vested in the state or in public owner- title of the state extends from ordiship, the right of passage and of navi- nary high-water mark to ordinary gation has been definitely held to in- high-water mark; that is, from the clude the right to fish and to hunt. line of upland vegetation on the one Sloan v. Biemiller, 34 Ohio St. 492;

side to the line of upland vegetation State v. Cleveland & P. R. Co. 94 Ohio on the other, and that the line of upSt. 61, L.R.A.1917A, 1007, 113 N. E. land vegetation is to be taken as it 677; Bodi v. Winous Pt. Shooting Club, was at the time of the patent granted 57 Ohio St. 226, 48 N. E. 944; Diana by the state. Shooting Club v. Husting, 156 Wis. Compare State v. Korrer, 127 Minn. 261, 145 N. W. 816, Ann. Cas. 1915C, 60, L.R.A.1916C, 139, 148 N. W. 617, 1148; Mendota Club v. Anderson, 101 1095; Tiffany v. Oyster Bay, 234 N. Y. Wis. 479, 78 N. W. 185; Ne-pee-nauk

20, 24 A.L.R. 1267, 136 N. E. 224; Club v. Wilson, 96 Wis. 290, 71 N. W. Hinkley v. State, 202 App. Div. 570,

195 N. Y. Supp. 914, 234 N. Y. 309, 137 The title to the lands in question is

N. E. 599; People v. Chateaugay Ore vested in the people of the state of

& Iron Co. 198 App. Div. 173, 189 N. New York from high-water mark to Y. Supp. 754. high-water mark; that is, from the line The common-law rule as to lands of upland vegetation on the one side bordering on or adjacent to navigable to the line of upland vegetation on

waters does not apply to Cayuga lake. the other, and inclusive of the shore. Smith v. Rochester, 92 N. Y. 463,

State v. Thompson, 134 Iowa, 25, 111 44 Am. Rep. 393; Fulton Light, Heat N. W. 328; State v. Jones, 143 Iowa, & P. Co. v. State, 200 N. Y. 400, 37 398, 122 N. W. 241; Baker v. Johnson, L.R.A.(N.S.) 307, 94 N. E. 199; Hooker 178 App. Div. 230, 165 N. Y. Supp. v. Cummings, 20 Johns, 90, 11 Am. Dec. 225; West Virginia Pulp & Paper Co. 249; People ex rel. Loomis_v. Canal v. Peck, 189 App. Div. 286, 178 N. Y. Appraisers, 33 N. Y. 461; Tiffany v. Supp. 663; Darling v. Newport News, Oyster Bay, 234 N. Y. 20, 24 A.L.R. 123 Va. 14, 3 A.L.R. 748, 96 S. E. 307. 1267, 136 N. E. 224; Sterling v. JackAs a matter of fact and of law, the son, 69 Mich. 488, 13 Am. St. Rep. 405,

31 A.L.R.-61.

661.

37 N. W. 845; Smith v. Odell, 194 App. 307, 94 N. E. 199; West Virginia Pulp Div. 768, 185 N. Y. Supp. 647; Gratz & Paper Co. v. Peck, 189 App. Div. 286, v. McKee, 23 A.L.R. 1393, 270 Fed. 178 N. Y. Supp. 663. 713.

In the case of our inland seas or Where the title to the lands in ques- large navigable bodies of water, the tion is vested in the state, the hunting title of the riparian owners of land, and fishing rights belong to the pub- adjacent to such bodies of water, exlic, and the operations of the defend- tends only to high-water mark. ants from low-water mark out, and Canal Comrs. v. People, 5 Wend. particularly from the water's edge out, 447; People ex rel. Loomis v. Canal were lawful and constituted no inter- Appraisers, 33 N. Y. 461; Canal Apference with any rights of plaintiffs. praisers v. People, 17 Wend. 597;

Hume v. Rouge River Packing Co. Smith v. Rochester, 92 N. Y. 463, 44 51 Or. 237, 31 L.R.A.(N.S.) 396, 131 Am. Rep. 393; People ex rel. BurnAm. St. Rep. 732, 83 Pac. 391, 92 Pac. ham v. Jones, supra; Wheeler v. Spi1065, 96 Pac. 865; Winous Pt. Shooting nola, 54 N. Y. 377. Club v. Slaughterbeck, 96 Ohio St. 139, The title to lands between the high L.R.A.1918A, 1142, 117 N. E. 162; State and low water mark, bordering on the v. Korrer, supra; Johnson v. Burg- large navigable lakes in this state, is horn, 11 A.L.R. 241, note; Meredith v. undoubtedly in the state of New York. Triple Island Gunning Club, 113 Va. People ex rel. Burnham v. Jones, 80, 38 L.R.A.(N.S.) 286, 73 S. E. 721, supra; Smith v. Rochester, 92 N. Y. Ann. Cas. 1913E, 531; Ainsworth v. 463, 44 Am. Rep. 393; Gerard, Titles Munoskong Hunting & Fishing Club, to Real Estate, 5th ed. p. 923; Illinois 153 Mich. 185, 17 L.R.A. (N.S.) 1236, C. R. Co. v. Illinois, 146 U. S. 387, 36 126 Am. St. Rep. 474, 116 N. W. 992, L. ed. 1018, 13 Sup. Ct. Rep. 110; 15 Ann. Cas. 706; Sisson v. Cummings, Morgan v. King, 30 Barb. 9; Ledyard 35 Hun, 25; Nevins v. Friedauer, 198 v. Ten Eyck, 36 Barb. 102; Kingman App. Div. 265, 190 N. Y. Supp. 682; v. Sparrow, 12 Barb. 201; Canal ApWhittaker v. Stangvick, 100 Minn. 386, praisers v. People, 17 Wend. 597; St. 10 L.R.A. (N.S.) 921, 117 Am. St. Rep. Louis, I, M. & S. R. Co. v. Ramsey, 53 703, 111 N. W. 295, 10 Ann. Cas. 528; Ark. 314, 8 L.R.A. 559, 22 Am. St. Thiesen v. Gulf, F. & A. R. Co. 75 Fla. Rep. 195, 13 S. W. 931; Carpenter v. 28, L.R.A.1918E, 718, 78 So. 491; Hennepin County, 56 Minn. 513, 58 N. State v. Cleveland & P, R, Co. 94 Ohio W. 295; Ephraim Creek Coal & Coke St. 61, L.R.A.1917A, 1007, 113 N. E. Co. v. Bragg, 75 W. Va. 70, 83 S. E. 677.

190; Wheeler v. Spinola, 54 N. Y. 377. Mr. George B. Becker, for respond- Plaintiffs as lessees of the riparian ent Bausch:

owner of land bounded by a large The title to the bed of Cayuga lake navigable lake, the title to the bed and is in the state of New York.

the shores whereof is in the state of Geneva v. Henson, 202 N. Y. 545, New York, have no exclusive rights 95 N. E. 1125; Sweet v. Syracuse, 129 of hunting and fishing on the beach N. Y. 316, 27 N. E. 1081, 29 N. E. 289; or foreshores below the high-water Chism v. Smith, 174 App. Div. 332, 160 mark or line of upland vegetation. N. Y. Supp. 813; Canal Comrs. v. Peo- Tiffany v. Oyster Bay, 234 N. Y. ple, 5 Wend. 447; People v. Kyser, 78 15, 24 A.L.R. 1267, 136 N. E. 224; Misc. 68, 138 N. Y. Supp. 801; Lang- Brookhaven v. Smith, 188 N. Y. 74, 9 don v. New York, 93 N. Y. 128; Knick- L.R.A.(N.S.) 326, 80 N. E. 665, 11 erbocker Ice Co. v. Shultz, 116 N. Y. Ann. Cas. 1; Barnes v. Midland R. 382, 22 N. E. 564; Sage v. New York, Terminal Co. 193 N. Y. 378, 127 Am. 154 N. Y. 61, 38 L.R.A. 606, 61 Am. St. St. Rep. 962, 85 N. E. 1093; Murphy Rep. 592, 47 N. E. 1096; Seneca Na- v. Brooklyn, 98 N. Y. 642; Brookhaven tion v. Christie, 126 N. Y. 122, 27 N. v. Strong, 60 N. Y. 56. E. 275.

Messrs. Carl Sherman and Irving I. The bed of Cayuga lake extends Goldsmith for the State. from high-water mark to high-water

Andrews, J., delivered the opinion mark.

of the court: People ex rel. Burnham v. Jones, 112 N. Y. 597, 20 N. E. 577; Smith v.

Cayuga lake is 38 miles long and Rochester, 92 N. Y. 463, 44 Am. Rep.

from 1 to 3 miles wide. Lying east 393; Fulton Lake, Heat & P. Co. v.

of the Massachusetts pre-emption State, 200 N. Y. 400, 37 L.R.A. (N.S.) line it is no part of the state's

Waters-conveyance of land

extent of grant.

(237 N. Y. 117, 112 N. E. 437.) boundary. Not far away are te entered and did the acts which are other lakes of considerable size. claimed to be trespasses. Such they Some-Canaderaga, Cazenovia, On- were in fact, if title to the beach is ondaga, Otisco, and Cross-are but vested in plaintiffs' lessor. This is a few miles long and from one half the question for our decision, for we to 2 miles wide. Others—Otsego, do not think under the findings as Owasco, and Skaneateles—are larg- made that any purely riparian. er. One-Oneida-has more water rights which the plaintiffs may have surface than Cayuga. Further east possessed were interfered with. If, are similar lakes,-Lake George, however, their lessor owned the fee Saratoga lake, Cranberry, Saranac, to the beach in question, it is not disTupper, Schroon, and others.

puted but that an injunction should All these lakes are alike in some issue. respects. At irregular intervals the Our answer to this question dewater level is raised by spring fresh- pends primarily upon the meaning ets or heavy rains. Again in time of and effect of the grant from the drought it is lower. So along each state. In deeds from an individual is a strip of land sometimes free owning to the center of a highway of water,--sometimes covered. On or a nontidal stream or a lake or each, also, are points or beaches of pond of land said to gravel or sand washed up by the be bounded by such waves, lying between the line of in- highway, stream, or bounded onland vegetation and the water, and lake, or simply of a covered, if at all, only in times of tract with reference to a map showextreme floods. All are in fact navi. ing the tract to be so bounded, the gable, although in none does the tide grantee takes title to the center of ebb and flow. In a few instances the highway or to the thread of the title to the land about them is de- stream or lake. A presumption rived from colonial grants. Usual- founded originally upon the asly, however, its source is the state. sumed intent of the parties, it has Often, perhaps in most instances, now become a rule of property. If the description of the land granted the grantor desires to retain his is of a lot represented on a certain title to the land in the highway or map, and a reference to the map

underneath the water, the presumpshows the lot running down to the tion must be negatived by express water.

words or by such a description as Such was the grant under which clearly excludes it from the land the plaintiffs claim. It was of conveyed. And, at least ordinarily, “farm lot 86, Lake Cayuga Reserva- the same rule applies to grants from tion, which lies on the east side of the state, except as to the Hudson Cayuga lake.” The map of the res- and Mohawk rivers, ervation referred to shows this lot which, because of abutting upor the lake. The photo historical reasons, graphs in evidence give us an idea are governed by of the lake shore at this point. special rules. “What, then, was the Stretching eastward from the wa- extent of the premises thus granted ter is a beach of gravel and bould by the state? In the terms of sale, ers for some 30 feet. It terminates and in the terms employed in the in a rise covered with vegetation. patent, a phraseology has been Beyond is said to be a marsh. The adopted which, as between private gravel beach for much of the year is individuals, would convey an interfree from water. When the lake is est to the middle of the river. And high, however, it is overflowed. So, is the doctrine to be tolerated which in extreme high water is the rise to shall assign one construction to a the east, and small boats may pass contract between private citizens, over it directly to the marsh. and a different one between an indi

Upon this beach the defendants vidual and the government? Would

Public landconveyance of land bounded on water-extent.

1 not the adoption of such a rule of 55 Sol. Jo. 686—H. L. These cases construction operate as a fraud up- deal with Lough Neagh, 18 miles on a purchaser who should pay an long and 11 wide. Johnston v. enhanced price for land adjacent to Bloomfield, Ir. Rep. 8 C. L. 68. a stream of water upon the faith of Lough

Lough Erne is slightly smaller. a contract, which, as between pri. Cobb v. Davenport, 32 N. J. L. 369; vate individuals, would have given Rice v. Ruddiman, 10 Mich, 125. him valuable hydraulic privileges ? Muskegon Lake is 6 miles by 24. It seems to me that but one answer In this state the question has can be given to these questions." never been determined. In Geneva Varick v. Smith, 9 Paige, 547, 552; v. Henson, 195 N. Y. 447, 88 N. Ex parte Jennings, 6 Cow. 518, 16 E. 1104, 202 N. Y. 545, 95 N. E. Am. Dec. 447; Smith v. Rochester, 1125, we construed the meaning 92 N. Y. 463, 44 Am. Rep. 393; Ful- of deeds between owners describton Light, Heat & P. Co. v. State, ing the boundary as the shore of 200 N. Y. 400, 37 L.R.A.(N.S.) 307, the lake. In Sweet v. Syracuse, 94 N. E. 199; Oswego v. Oswego 129 N. Y. 316, 27 N. E. 1081, 29 Canal Co. 6 N. Y. 257; Syracuse So- N. E. 289, we noticed the conlar Salt Co. v. Rome, W. & O. R. Co. tention that the fee of the land be43 App. Div. 203, 60 N. Y. Supp. 40, neath Skaneateles lake was in the asfirmed in 168 N. Y. 650, 61 N. E. state. In Smith v. Rochester, 92 N. 1135; Hardin v. Jordan, 140 U. S. Y. 463, 44 Am. Rep. 393, Judge 371, 35 L. ed. 428, 11 Sup. Ct. Rep. Ruger said, “in passing,” that the 808, 838; Lord v. Sydney, 12 Moore doctrine that the bed of fresh-water P. C. 473, 14 Eng. Reprint, 991, 3 streams where the tide does not ebb L. T. N. S. 1, 7 Week. Rep. 267; and flow belongs in common right to Browne v. Kennedy, 5 Harr. & J. the owners of the soil adjacent is in195, 9 Am. Dec. 503; Berry v. applicable to the "vast” fresh-water Snyder, 3 Bush, 266, 96 Am. Dec. lakes and streams of this country. ,219; Lamprey V. State, 52 Minn. Just what he meant by "vast" is not 181, 18 L.R.A. 670, 38 Am. St. Rep. stated. Certainly not Hemlock lake, 541, 53 N. W. 1139; Chamdos v. 7 miles long and half a mile wide, Mack, 77 Wis. 573, 10 L.R.A. 207, for there we held the general rule 20 Am. St. Rep. 139, 46 N. W. 803. applied. In Canal Comrs. v. People,

While admitting, however, the 5 Wend. 423, the question was as to general rule, it is said that it should the meaning of a grant from the be limited in the case of a lake the state bounded by the Mohawk river. size of Cayuga. Based as it is on A statement of the chancellor that presumption as to what grantor and the

the common-law rule as to such grantee intended, this presumption grants does not embrace our large may be rebutted, and the results fresh-water lakes or inland seas flowing from its application in the was purely dictum. In Ledyard v. case of this lake would be so remark- Ten Eyck, 36 Barb. 102, the court able that we should hold the physical held that the title of the abutting situation to be such as to show owners extended to the center of no such intention could have been Cazenovia lake. present. It cannot, it is argued, be Were it necessary we would hold, supposed that the grantee of 100 however, that with regard to a grant square feet upon the shore has at- of land on Cayuga lake an exception tached to his property a strip of land should be made to the common-law under water 2 miles in length.

rule. We are aware of the stateYet there is much authority to the ment of Judge Bradley in Hardin v. contrary. Bristow v. Cormican, L. Jordan, 140 U. S. 371, 397, 35 L. ed. R. 3 App. Cas. 641, 666-H. L.; 428, 438, 11 Sup. Ct. Rep. 808, 838, Johnston v. O'Neill (1911] A. C. that the Supreme Court does not 552, 557, 81 L. J. P. C. N. S. 17, 105 think the argument ab inconvenienti L. T. N. S. 587, 27 Times L. R. 545, is sufficient to justify an abandon

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