that place to the carrier authorized by defendant to receive the coal constituted a delivery to defendant. The Louisville & Nashville Railroad was the agent of defendant because it was the only carrier to which delivery could be made, and since it was such agent, delivery to it, though not made in full compliance with the shipping instructions, nevertheless constituted delivery to defendant. The coal became the property of defendant at Belleville, subject only to the right of stoppage in transitu, and defendant's refusal to receive it at St. Joseph was but a refusal to take charge of and have dominion over its own property.

It follows from what we have said that plaintiff is entitled to recover the contract price of the coal and that defendant, under proper pleadings, is entitled to recover from defendant the damages, if any, it sustained as a result of plaintiff's breach of an independent condition of the contract."

In Murphy v. American Can Co. (1907) 106 Md. 190, 67 Atl. 17, the court held that even if delivery of goods to a particular schooner was not authorized, the conduct of the buyer in retaining a bill of lading therefor amounted to a ratification of the delivery so as to transfer the property to the buyer. R. S.

Waters

conveyance of land bounded

on extent of grant.

2. A conveyance by an individual owning to the center of a nontidal stream or lake or pond, of land bounded thereon, or of a tract with reference to a map showing the tract to be so bounded, carries title to the center. Public land conveyance of land bounded on water-extent.

3. A conveyance by the state of land bounded on natural streams, lakes, or ponds ordinarily carries title to the center, except in special cases, such possibly as a small grant on the shore of a lake 1 to 3 miles wide.

[See 4 R. C. L. 93, 94; 1 R. C. L. Supp. 1057; 27 R. C. L. 1363; 4 R. C. L. Supp. 1793. See also note in 23 A.L.R. 794.]

er.

Ledyard v. Ten Eyck, 36 Barb. 125; Canal Comrs. v. People, 5 Wend. 446; Champlain & St. L. R. Co. v. Valentine, 19 Barb. 491; Child v. Starr, 4 Hill, 369; Geneva v. Henson, 195 N. Y. 463, 88 N. E. 1104; Halsey v. McCormick, 13 N. Y. 296; Yates v. Van De Bogert, 56 N. Y. 531; People v. Kyser, 78 Misc. 68, 138 N. Y. Supp. 801; Wheeler v. Spinola, 54 N. Y. 385.

Mr. Nelson L. Drummond, for respondents Turney, Dooley, & Heff, who were represented by Messrs. Drummond & Hosmer:

Where the title to the lands or the beds of the waters in question is vested in the state or in public ownership, the right of passage and of navigation has been definitely held to include the right to fish and to hunt.

Sloan v. Biemiller, 34 Ohio St. 492; State v. Cleveland & P. R. Co. 94 Ohio St. 61, L.R.A.1917A, 1007, 113 N. E. 677; Bodi v. Winous Pt. Shooting Club, 57 Ohio St. 226, 48 N. E. 944; Diana Shooting Club v. Husting, 156 Wis. 261, 145 N. W. 816, Ann. Cas. 1915C, 1148; Mendota Club v. Anderson, 101 Wis. 479. 78 N. W. 185; Ne-pee-nauk Club v. Wilson, 96 Wis. 290, 71 N. W. 661.

The title to the lands in question is vested in the people of the state of New York from high-water mark to high-water mark; that is, from the line of upland vegetation on the one side to the line of upland vegetation on the other, and inclusive of the shore.

State v. Thompson, 134 Iowa, 25, 111 N. W. 328; State v. Jones, 143 Iowa, 398, 122 N. W. 241; Baker v. Johnson, 178 App. Div. 230, 165 N. Y. Supp. 225; West Virginia Pulp & Paper Co. v. Peck, 189 App. Div. 286, 178 N. Y. Supp. 663; Darling v. Newport News, 123 Va. 14, 3 A.L.R. 748, 96 S. E. 307. As a matter of fact and of law, the 31 A.L.R.-61.

title to the bed of Cayuga lake, inclusive of the shore, is vested in the people of the state of New York.

Geneva v. Henson, 140 App. Div. 49, 124 N. Y. Supp. 588, 195 N. Y. 447, 88 N. E. 1104, 202 N. Y. 545, 95 N. E. 1125; Chism v. Smith, 174 App. Div. 332, 160 N. Y. Supp. 813; Champlain & St. L. R. Co. v. Valentine, 19 Barb. 484; Canal Comrs. v. People, 5 Wend. 447; McBurney v. Young, 67 Vt. 574, 29 L.R.A. 539, 32 Atl. 492; Austin v. Rutland R. Co. 45 Vt. 215; Fletcher v. Phelps, 28 Vt. 257; People v. Kyser, 78 Misc. 68, 138 N. Y. Supp. 801; West Virginia Pulp & Paper Co. v. Peck, 82 Misc. 72, 143 N. Y. Supp. 720, 104 Misc. 172, 171 N. Y. Supp. 1065, 189 App. Div. 286, 178 N. Y. Supp. 663.

When lands are bounded upon the bank, the title does not go to the water. Clement v. Burns, 43 N. H. 609.

It is the contention of the state, asserted and proceeded on by the departments thereof, that on the navigable bodies of water in the state the title of the state extends from ordinary high-water mark to ordinary high-water mark; that is, from the line of upland vegetation on the one side to the line of upland vegetation on the other, and that the line of upland vegetation is to be taken as it was at the time of the patent granted by the state.

Compare State v. Korrer, 127 Minn. 60, L.R.A.1916C, 139, 148 N. W. 617, 1095; Tiffany v. Oyster Bay, 234 N. Y. 20, 24 A.L.R. 1267, 136 N. E. 224; Hinkley v. State, 202 App. Div. 570, 195 N. Y. Supp. 914, 234 N. Y. 309, 137 N. E. 599; People v. Chateaugay Ore & Iron Co. 198 App. Div. 173, 189 N. Y. Supp. 754.

The common-law rule as to lands bordering on or adjacent to navigable waters does not apply to Cayuga lake.

Smith v. Rochester, 92 N. Y. 463, 44 Am. Rep. 393; Fulton Light, Heat & P. Co. v. State, 200 N. Y. 400, 37 L.R.A. (N.S.) 307, 94 N. E. 199; Hooker v. Cummings, 20 Johns. 90, 11 Am. Dec. 249; People ex rel. Loomis v. Canal Appraisers, 33 N. Y. 461; Tiffany v. Oyster Bay, 234 N. Y. 20, 24 A.L.R. 1267, 136 N. E. 224; Sterling_v. Jackson, 69 Mich. 488, 13 Am. St. Rep. 405,

37 N. W. 845; Smith v. Odell, 194 App. Div. 768, 185 N. Y. Supp. 647; Gratz v. McKee, 23 A.L.R. 1393, 270 Fed. 713.

Where the title to the lands in question is vested in the state, the hunting and fishing rights belong to the public, and the operations of the defendants from low-water mark out, and particularly from the water's edge out, were lawful and constituted no interference with any rights of plaintiffs.

Hume v. Rouge River Packing Co. 51 Or. 237, 31 L.R.A. (N.S.) 396, 131 Am. St. Rep. 732, 83 Pac. 391, 92 Pac. 1065, 96 Pac. 865; Winous Pt. Shooting Club v. Slaughterbeck, 96 Ohio St. 139, L.R.A.1918A, 1142, 117 N. E. 162; State v. Korrer, supra; Johnson v. Burghorn, 11 A.L.R. 241, note; Meredith v. Triple Island Gunning Club, 113 Va. 80, 38 L.R.A.(N.S.) 286, 73 S. E. 721, Ann. Cas. 1913E, 531; Ainsworth v. Munoskong Hunting & Fishing Club, 153 Mich. 185, 17 L.R.A. (N.S.) 1236, 126 Am. St. Rep. 474, 116 N. W. 992, 15 Ann. Cas. 706; Sisson v. Cummings, 35 Hun, 25; Nevins v. Friedauer, 198 App. Div. 265, 190 N. Y. Supp. 682; Whittaker v. Stangvick, 100 Minn. 386, 10 L.R.A. (N.S.) 921, 117 Am. St. Rep. 703, 111 N. W. 295, 10 Ann. Cas. 528; Thiesen v. Gulf, F. & A. R. Co. 75 Fla. 28, L.R.A.1918E, 718, 78 So. 491; State v. Cleveland & P. R. Co. 94 Ohio St. 61, L.R.A.1917A, 1007, 113 N. E. 677.

Mr. George B. Becker, for respondent Bausch:

The title to the bed of Cayuga lake is in the state of New York.

Geneva v. Henson, 202 N. Y. 545, 95 N. E. 1125; Sweet v. Syracuse, 129 N. Y. 316, 27 N. E. 1081, 29 N. E. 289; Chism v. Smith, 174 App. Div. 332, 160 N. Y. Supp. 813; Canal Comrs. v. People, 5 Wend. 447; People v. Kyser, 78 Misc. 68, 138 N. Y. Supp. 801; Langdon v. New York, 93 N. Y. 128; Knickerbocker Ice Co. v. Shultz, 116 N. Y. 382, 22 N. E. 564; Sage v. New York, 154 N. Y. 61, 38 L.R.A. 606, 61 Am. St. Rep. 592, 47 N. E. 1096; Seneca Nation v. Christie, 126 N. Y. 122, 27 N. E. 275.

The bed of Cayuga lake extends from high-water mark to high-water mark.

People ex rel. Burnham v. Jones, 112 N. Y. 597, 20 N. E. 577; Smith v. Rochester, 92 N. Y. 463, 44 Am. Rep. 393; Fulton Lake, Heat & P. Co. v. State, 200 N. Y. 400, 37 L.R.A. (N.S.)

307, 94 N. E. 199; West Virginia Pulp & Paper Co. v. Peck, 189 App. Div. 286, 178 N. Y. Supp. 663.

In the case of our inland seas or large navigable bodies of water, the title of the riparian owners of land, adjacent to such bodies of water, extends only to high-water mark.

Canal Comrs. v. People, 5 Wend. 447; People ex rel. Loomis v. Canal Appraisers, 33 N. Y. 461; Canal Appraisers v. People, 17 Wend. 597; Smith v. Rochester, 92 N. Y. 463, 44 Am. Rep. 393; People ex rel. Burnham v. Jones, supra; Wheeler v. Spinola, 54 N. Y. 377.

The title to lands between the high and low water mark, bordering on the large navigable lakes in this state, is undoubtedly in the state of New York.

People ex rel. Burnham v. Jones, supra; Smith v. Rochester, 92 N. Y. 463, 44 Am. Rep. 393; Gerard, Titles to Real Estate, 5th ed. p. 923; Illinois C. R. Co. v. Illinois, 146 U. S. 387, 36 L. ed. 1018, 13 Sup. Ct. Rep. 110; Morgan v. King, 30 Barb. 9; Ledyard v. Ten Eyck, 36 Barb. 102; Kingman v. Sparrow, 12 Barb. 201; Canal Appraisers v. People, 17 Wend. 597; St. Louis, I. M. & S. R. Co. v. Ramsey, 53 Ark. 314, 8 L.R.A. 559, 22 Am. St. Rep. 195, 13 S. W. 931; Carpenter v. Hennepin County, 56 Minn. 513, 58 N. W. 295; Ephraim Creek Coal & Coke Co. v. Bragg, 75 W. Va. 70, 83 S. E. 190; Wheeler v. Spinola, 54 N. Y. 377.

Plaintiffs as lessees of the riparian owner of land bounded by a large navigable lake, the title to the bed and the shores whereof is in the state of New York, have no exclusive rights of hunting and fishing on the beach or foreshores below the high-water mark or line of upland vegetation.

Tiffany v. Oyster Bay, 234 N. Y. 15, 24 A.L.R. 1267, 136 N. E. 224; Brookhaven v. Smith, 188 N. Y. 74, 9 L.R.A. (N.S.) 326, 80 N. E. 665, 11 Ann. Cas. 1; Barnes v. Midland R. Terminal Co. 193 N. Y. 378, 127 Am. St. Rep. 962, 85 N. E. 1093; Murphy v. Brooklyn, 98 N. Y. 642; Brookhaven v. Strong, 60 N. Y. 56.

Messrs. Carl Sherman and Irving I. Goldsmith for the State.

Andrews, J., delivered the opinion of the court:

Cayuga lake is 38 miles long and from 1 to 3 miles wide. Lying east of the Massachusetts pre-emption line it is no part of the state's

boundary. Not far away are ten other lakes of considerable size. Some-Canaderaga, Cazenovia, Onondaga, Otisco, and Cross-are but a few miles long and from one half to 2 miles wide. Others-Otsego, Owasco, and Skaneateles-are larger. One-Oneida-has more water surface than Cayuga. Further east are similar lakes,-Lake George, Saratoga lake, Cranberry, Saranac, Tupper, Schroon, and others.

All these lakes are alike in some respects. At irregular intervals the water level is raised by spring freshets or heavy rains. Again in time of drought it is lower. So along each is a strip of land sometimes free of water,-sometimes covered. On each, also, are points or beaches of gravel or sand washed up by the waves, lying between the line of inland vegetation and the water, and covered, if at all, only in times of extreme floods. All are in fact navigable, although in none does the tide ebb and flow. In a few instances title to the land about them is derived from colonial grants. Usually, however, its source is the state. Often, perhaps in most instances, the description of the land granted is of a lot represented on a certain map, and a reference to the map shows the lot running down to the water.

Such was the grant under which the plaintiffs claim. It was of "farm lot 86, Lake Cayuga Reservation, which lies on the east side of Cayuga lake." The map of the reservation referred to shows this lot abutting upon the lake. The photographs in evidence give us an idea of the lake shore at this point. Stretching eastward from the water is a beach of gravel and boulders for some 30 feet. It terminates in a rise covered with vegetation. Beyond is said to be a marsh. The gravel beach for much of the year is free from water. When the lake is high, however, it is overflowed. So, in extreme high water is the rise to the east, and small boats may pass over it directly to the marsh.

Upon this beach the defendants

entered and did the acts which are claimed to be trespasses. Such they were in fact, if title to the beach is vested in plaintiffs' lessor. This is the question for our decision, for we do not think under the findings as made that any purely riparian rights which the plaintiffs may have possessed were interfered with. If, however, their lessor owned the fee to the beach in question, it is not disputed but that an injunction should issue.

Waters-conveyance of land extent of grant.

Our answer to this question depends primarily upon the meaning and effect of the grant from the state. In deeds from an individual owning to the center of a highway or a nontidal stream or a lake or pond of land said to be bounded by such highway, stream, or bounded onlake, or simply of a tract with reference to a map showing the tract to be so bounded, the grantee takes title to the center of the highway or to the thread of the stream or lake. A presumption founded originally upon the assumed intent of the parties, it has now become a rule of property. If the grantor desires to retain his title to the land in the highway or underneath the water, the presumption must be negatived by express words or by such a description as clearly excludes it from the land conveyed. And, at least ordinarily, the same rule applies to grants from the state, except as to the Hudson and Mohawk rivers, which, because of historical reasons,

Public landconveyance of land bounded on water-extent.

are governed by special rules. "What, then, was the extent of the premises thus granted by the state? In the terms of sale, and in the terms employed in the patent, a phraseology has been adopted which, as between private individuals, would convey an interest to the middle of the river. And is the doctrine to be tolerated which shall assign one construction to a contract between private citizens, and a different one between an individual and the government? Would

not the adoption of such a rule of construction operate as a fraud upon a purchaser who should pay an enhanced price for land adjacent to a stream of water upon the faith of a contract, which, as between private individuals, would have given him valuable hydraulic privileges? It seems to me that but one answer can be given to these questions." Varick v. Smith, 9 Paige, 547, 552; Ex parte Jennings, 6 Cow. 518, 16 Am. Dec. 447; Smith v. Rochester, 92 N. Y. 463, 44 Am. Rep. 393; Fulton Light, Heat & P. Co. v. State, 200 N. Y. 400, 37 L.R.A. (N.S.) 307, 94 N. E. 199; Oswego v. Oswego Canal Co. 6 N. Y. 257; Syracuse Solar Salt Co. v. Rome, W. & O. R. Co. 43 App. Div. 203, 60 N. Y. Supp. 40, affirmed in 168 N. Y. 650, 61 N. E. 1135; Hardin v. Jordan, 140 U. S. 371, 35 L. ed. 428, 11 Sup. Ct. Rep. 808, 838; Lord v. Sydney, 12 Moore P. C. 473, 14 Eng. Reprint, 991, 3 L. T. N. S. 1, 7 Week. Rep. 267; Browne v. Kennedy, 5 Harr. & J. 195, 9 Am. Dec. 503; Berry v. Snyder, 3 Bush, 266, 96 Am. Dec. 219; Lamprey v. State, 52 Minn. 181, 18 L.R.A. 670, 38 Am. St. Rep. 541, 53 N. W. 1139; Chamdos v. Mack, 77 Wis. 573, 10 L.R.A. 207, 20 Am. St. Rep. 139, 46 N. W. 803.

While admitting, however, the general rule, it is said that it should be limited in the case of a lake the size of Cayuga. Based as it is on presumption as to what grantor and grantee intended, this presumption may be rebutted, and the results flowing from its application in the case of this lake would be so remarkable that we should hold the physical situation to be such as to show no such intention could have been present. It cannot, it is argued, be supposed that the grantee of 100 square feet upon the shore has attached to his property a strip of land under water 2 miles in length.

Yet there is much authority to the contrary. Bristow v. Cormican, L. R. 3 App. Cas. 641, 666-H. L.; Johnston v. O'Neill [1911] A. C. 552, 557, 81 L. J. P. C. N. S. 17, 105 L. T. N. S. 587, 27 Times L. R. 545,

55 Sol. Jo. 686-H. L. These cases deal with Lough Neagh, 18 miles long and 11 wide. Johnston v. Bloomfield, Ir. Rep. 8 C. L. 68. Lough Erne is slightly smaller. Cobb v. Davenport, 32 N. J. L. 369; Rice v. Ruddiman, 10 Mich, 125. Muskegon Lake is 6 miles by 24.

In this state the question has never been determined. In Geneva v. Henson, 195 N. Y. 447, 88 N. E. 1104, 202 N. Y. 545, 95 N. E. 1125, we construed the meaning of deeds between owners describing the boundary as the shore of the lake. In Sweet v. Syracuse, 129 N. Y. 316, 27 N. E. 1081, 29 N. E. 289, we noticed the contention that the fee of the land beneath Skaneateles lake was in the state. In Smith v. Rochester, 92 N. Y. 463, 44 Am. Rep. 393, Judge Ruger said, "in passing," that the doctrine that the bed of fresh-water streams where the tide does not ebb and flow belongs in common right to the owners of the soil adjacent is inapplicable to the "vast" fresh-water lakes and streams of this country. Just what he meant by "vast" is not stated. Certainly not Hemlock lake, 7 miles long and half a mile wide, for there we held the general rule applied. In Canal Comrs. v. People, 5 Wend. 423, the question was as to the meaning of a grant from the state bounded by the Mohawk river. A statement of the chancellor that the common-law rule as to such grants does not embrace our large fresh-water lakes or inland seas was purely dictum. In Ledyard v. Ten Eyck, 36 Barb. 102, the court held that the title of the abutting owners extended to the center of Cazenovia lake.

Were it necessary we would hold, however, that with regard to a grant of land on Cayuga lake an exception should be made to the common-law rule. We are aware of the statement of Judge Bradley in Hardin v. Jordan, 140 U. S. 371, 397, 35 L. ed. 428, 438, 11 Sup. Ct. Rep. 808, 838, that the Supreme Court does not think the argument ab inconvenienti is sufficient to justify an abandon