ment of this rule; that to do so is too much like judicial legislation. This is true where the law is clear. Where it is unsettled the result of a proposed rule may turn the scale. So with reference to such a body of water the ordinary rule is so impractical that we give weight to that consideration. Added, also, to the doubts that have been expressed by great judges, is the fact that the claim has been often asserted by the state to ownership of the land under the water of these large lakes. A number of such grants have been made on Lake George, on Cayuga lake, on the east shore of Seneca lake, and even on Otsego lake. And one of the commonest modes of rebutting a presumption as to title is continued acts of ownership by the grantor. Further than that no claim to the contrary seems to be made by the appellants in the case before us.

We will assume, therefore, that the grant of lot 86 did not carry title to the center of Cayuga lake. Even so, however, the question as to the title of the land in dispute remains unanswered. Precisely what did the state grant and precisely what did it reserve? Where is the precise line of demarcation between the land retained and the land granted?

In passing upon this question we must realize that there is no analogy between this lake, where the water changes its level at uncertain and irregular intervals, and the seacoast, where daily the tide ebbs and flows, where the line of ordinary high and low tide is fairly definite. Even here the upper line is defined by "ordinary" high tides. High spring tides are not considered. Nor are extraordinary tides caused by storms. Nor are the tides which happen twice a month with the full and change of the moon. The line is governed by the neap tides (Hale, De Jure Maris, chap. 6; Baird v. Campbell, 67 App. Div. 104, 73 N. Y. Supp. 617; Lowe v. Govett, 3 Barn. & Ad. 863, 110 Eng. Reprint, 317, 1 L. J. K. B. N. S. 224; Teschemacher

v. Thompson, 18 Cal. 11, 79 Am. Dec. 151), or, at least, by the line of medium high water between the monthly spring and neap tides. Atty. Gen. v. Chambers, 4 DeG. M. & G. 206, 43 Eng. Reprint, 486, 23 L. J. Ch. N. S. 662, 2 Week. Rep. 636, 18 Jur. 779, 17 Eng. Rul. Cas. 555; New Jersey Zinc & I. Co. v. Morris Canal & Bkg. Co. 44 N. J. Eq. 398, 1 L.R.A. 133, 15 Atl. 227; United States v. Pacheco, 2 Wall. 587, 17 L. ed. 865. And this is true, although every spring the waters of tidal rivers may be raised by floods, exactly as is the case of inland lakes. On the lower Hudson the line of the state's ownership is not defined by the annual spring freshets rather than by ordinary high tide. It is also well to remember that under the assumption we made we are dealing with an exceptional case. The fact that this is so, the fact that the grantee may well desire complete and unrestricted access to the water, the fact that where the shore of the sea is granted, the lower boundary probably may not be restricted to the line of ordinary low tide, but to the iine at its lowest ebb (1 Farnham, Waters, 228), may well be considered in deciding what the state has granted.

In speaking of such boundaries on lakes, courts have frequently said that they run to high or law water mark. Usually exactly what is. meant by these terms is not defined. Often the statement is made casually without examination, because not determinative of the case under discussion. Sometimes, as in California, Washington, North and South Dakota, and perhaps elsewhere, it rests upon a local statute or Constitution. Sometimes it is held that the bed of lakes is held by the state in trust for the people and may not be granted. Therefore a patent is given a narrow construction. Many cases in the United States Supreme Court depend upon the law of the states in which the land is situated. Hardin v. Shedd, 190 U. S. 508, 47 L. ed. 1156, 23

Sup. Ct. Rep. 685. Foreign cases are, therefore, to be cited with caution.

In fixing the boundary of such a grant as the present, there are four possible choices. We may take the line of extraordinary spring floods. We find, however, no support for this position, and we pass it by. We may take the line of vegetation or erosion. We do not think this is satisfactory. No such rule prevails upon the seacoast, where barren sands or rocks often lie above the reach of ordinary tides. So it is with beaches of sand or gravel on these lakes, which do not support vegetation, yet which are rarely or never covered with water. The support of such a rule seems to be rested largely on Howard v. Ingersoll, 13 How. 381, 14 L. ed. 189. In support of it are also cited Oklahoma v. Texas, 260 U. S. 606, 67 L. ed. 428, 43 Sup. Ct. Rep. 221; Houghton v. Chicago, D. & M. R. Co. 47 Iowa, 370; Diana Shooting Club v. Husting, 156 Wis. 261, 145 N. W. 816, Ann. Cas. 1915C, 1148, and Re Minnetonka Lake Improvement, 56 Minn. 513, 514, 45 Am. St. Rep. 494. 58 N. W. 295. In Howard v. Ingersoll the court construed the meaning of language used in an instrument by which the state of Georgia ceded land from the "west bank" of the Chattahoochee river to the United States. This interpretation was not aided, the court said, by cases upon the rights of riparian proprietors holding under grants from a state having the entire ownership of a river. The case was one of two sovereignties, dealing for a cession of country from one to the other with a river between them, to be marked on a bank of it from which the ceded land was to commence. What, under such circumstances, did the word "bank" mean? At the point involved the river was about 600 feet wide, lying between abrupt banks 15 or 20 feet high. Much of the year the water was confined to a channel 30 yards wide, leaving exposed rocks with sloughs between them.

Any

endeavor to trace the line of cession by low water must fail. Such a term is only predicable of rivers within. the ebb and flow of the tide. The word used was "bank." Rivers have banks, shores, water, and a bed, as all knew when the cession was made. By inspection the banks could be determined. It means those boundaries which contained the water at its highest flow. This case, therefore, seems to aid us little in deciding the meaning of the grant before us, except that possibly the distinction drawn between the "bed" of a river and its "shores," meaning by the latter term that part of the river uncovered at low water, may be useful if what the state of New York retains is the bed of Cayuga lake.

In Houghton v. Chicago, D. & M. R. Co. the court, following the Iowa rule, held that an abutter upon the Mississippi took only to high-water mark, and it defined this mark, not as determined by the highest point ordinarily reached by periodical rises in June and September, but by the edge of the bank,-the portion of the earth which confines the river in its channel. The rises that come from storms and melting snows should be disregarded. They are temporary and uncertain. But the banks afford a certain line. They are impressed upon the earth itself by the attrition of the river current. Certainly what the river does not occupy long enough to wrest from vegetation is not river bed. All this is clearly true. A river with a defined current wears a bed which all may see. A lake does not. No more than the sea may it be said to have banks. In Matter of Lake Minnetonka Improvement, what was said was entirely applicable to the case under consideration. Around the lake were places where the banks were steep and abrupt. Elsewhere were meadows where the land was but slightly above the ordinary water level and subject to periodical overflow. The court rejected the claim that the state might, in aid of navigation, raise the water so as to permanently cover these lowlands.

"While the property of a riparian owner," it is said, "on navigable or public waters, extends to ordinary low-water mark, yet it is unquestionably true that his title is not absolute except to ordinary high-water mark. As to the intervening space the title of the riparian owner is qualified or limited by the public right" of navigation, and the state may prevent any use of it, even by the owner of the land, that would interfere with this right. The court then continues that high-water mark does not mean the limits of spring floods or freshets, but only that point reached by the water for such a length of time and so continuously as to wrest it from vegetation. This must be the principal test. In Diana Shooting Club v. Husting it was held that the public might fish or hunt upon any navigable stream below ordinary high-water mark, and that mark was defined as that point on the bank up to which the presence of the water is so continuous as to leave a distinct trace either by erosion, destruction of vegetation, or other easily recognized characteristics. No question of title was involved. Indeed, the court expressly declined to decide whether the public might enter below high-water mark upon a strip which, by the recession of the water, becomes unnavigable or is left uncovered. This was settled in the negative, however, in Doemel v. Jantz, 180 Wis. 225, post, 969, 193 N. W. 393, which case cites and explains the case to which we have referred. In Oklahoma v. Texas the controversy was again as to the meaning of a treaty which fixed a national boundary on the southern bank of the Red river. Here in most places there was a "cut" bank eroded by the water. This was the bank intended. Where no bank existed a level was to be taken of the height of the water when it washed the bank without overflowing.

None of these case, therefore, aid us in the construction of the grant before us. At most, some of them defined what is meant by high-water mark. A similar definition is given

in decisions called to our attention in the courts of Maine, West Virginia, Arkansas, Oregon, Oklahoma, and Iowa, but some of these cases do also hold that such a grant as the present takes only to high-water mark, as so defined. All of them are immaterial, therefore, unless we are prepared to hold that the grant before us is limited by the high-water line. Then, indeed, they might assist us in deciding where that line should be drawn. So the substantial question remains as to what is the limit of such a grant in our state. Is it the line of ordinary spring floods or the line of low water reached in the dry season?

While this court has never definitely passed upon the question, the current of opinion is that it is lowwater mark. In Canal Comrs. v. People, 5 Wend. 423, appears a dictum by the chancellor that the common law does not apply to our large fresh-water lakes, but as to them such a grant as the present takes to low-water mark. Such was the express ruling in Champlain & St. L. R. Co. v. Valentine, 19 Barb. 484. The same ruling was made in Sweet v. Syracuse, 60 Hun, 28, 38, 14 N. Y. Supp. 421. While we reversed this case we made no criticism of this particular statement. So, as to a private grant in Child v. Starr, 4 Hill, 369. See also Chism v. Smith, 138 App. Div. 715, 123 N. Y. Supp. 691. Similar statements have been made by us. Halsey v. McCormick, 13 N. Y. 296; Wheeler v. Spinola, 54 N. Y. 377; Yates v. Van De Bogert, 56 N. Y. 526; Gouverneur v. National Ice Co. 134 N. Y. 355, 18 L.R.A. 695, 30 Am. St. Rep. 669, 31 N. E. 865, approving of Wheeler v. Spinola to this extent; Geneva v. Henson, 195 N. Y. 447, 465, 88 N. E. 1104.

It is true that some of these cases refer to grants between individuals, but, as has been pointed out, where the state conveys its unappropriated lands for a consideration, its grants are to be construed as would be such deeds. It is true, also, that in Sisson v. Cummings, 106 N. Y. 56, 12 N. E. 345, we ex

pressly refrained from discussing the question, and that in People ex rel. Burnham v. Jones, 112 N. Y. 597, 20 N. E. 577, we noted the concession of both parties that the line of riparian proprietorship along Lake Ontario extends but to highwater mark, but that concession, even had we expressed approval of it, which we did not, was immaterial to any question involved in the case. In some of the cases quoted, the statement as to low water may have been made without particular consideration of the question. In others it may not have been strictly necessary to the decision rendered. But even dicta repeated by many judges under varying circumstances, while not binding upon us, are most persuasive.

In other states we think the weight of authority is in favor of the same rule. State v. Korrer, 127 Minn. 60, L.R.A.1916C, 139, 148 N. W. 617, 1095; Peoria v. Central Nat. Bank, 224 Ill. 43, 12 L.R.A. (N.S.) 687, 79 N. E. 296; Mariner v. Schulte, 13 Wis. 692; Martin v. Evansville, 32 Ind. 85; State ex rel. Citizens Electric Lighting & P. Co. v. Longfellow, 169 Mo. 109, 69 S. W. 374; Lincoln v. Davis, 53 Mich. 375, 384, 51 Am. Rep. 116, 19 N. W. 103; Bates v. Illinois C. R. Co. 12 Month. L. Rep. 519; Stover v. Jack, 60 Pa. 339, 100 Am. Dec. 566; Brown Oil Co. v. Caldwell, 35 W. Va. 95, 29 Am. St. Rep. 793, 13 S. E. 42; Martin v. Nance, 3 Head, 649; Denny v. Cotton, 3 Tex. Civ. App. 634, 22 S. W. 122; Mobile Transp. Co. v. Mobile, 153 Ala. 409, 13 L.R.A. (N. S.) 352, 127 Am. St. Rep. 34, 44 So. 976; State v. Eason, 114 N. C. 787, 23 L.R.A. 520, 41 Am. St. Rep. 811, 19 S. E. 88; Thurman v. Morrison, 14 B. Mon. 367; Whitenack v. Tunison, 16 N. J. L. 77; McBurney v. Young, 67 Vt. 574, 29 L.R.A. 539, 22 Atl. 492; Wood v. Kelley, 30 Me. 47; Handly v. Anthony, 5 Wheat. 374, 5 L. ed. 113; Paine v. Woods, 108 Mass. 160. The Massachusetts cases are sometimes said to be unimportant because, where land is

bounded by the sea, that state treats low water as the boundary of title. They do not rest, however, upon any such analogy. In support of the rule announced in the case cited, the opinion refers to the dictum of the chancellor in 5 Wend., to 30 Me., and to 28 Vt.

low-water mark.

In view, therefore, of these decisions, in view of the fair presumption that it was the intention to give the grantee the benefit of the water wherever it may be, in view of the fact that under the assumption we have made we find an exception to our general rule, which, so far as possible, should be minimized, we hold that under the grant from the state grant runs to the grantee took to low-water mark on Lake Cayuga. Whether in high water the public has not the right of navigation wherever a boat may float, we do not decide. Nor do we decide whether "low-water mark" means that mark to which the water may sink in extraordinary seasons, or simply at its ordinary and usual low level. Here such a decision is not necessary.

The grantee from the state having acquired title to the line of low water on Cayuga lake, this passed to one Gawger, who in 1872 conveyed it by a description running west to Cayuga lake and then "along the east shore" of the lake.

Boundary-on

grant.

This would lake-extent of carry the line to low-water mark in case the grantor has title to that line. Child v. Starr, supra; Gouverneur v. National Ice Co. 134 N. Y. 355, 18 L.R.A. 695, 30 Am. St. Rep. 669, 31 N. E. 865; Van Winkle v. Van Winkle, 184 N. Y. 193, 77 N. E. 33. Therefore, there passed to plaintiff's lessor whatever title was acquired by the original grantee.

If this be so, concededly the defendants committed repeated trespasses upon the property held by the plaintiffs. What Injunctionthey did was done against trespass above ordinary lowwater mark. The result therefore

on shore of lake.

-foundation of public right.

2. The use of navigable waters for navigation purposes is at the foundation of the public right in them. [See 27 R. C. L. 1317.]

- riparian rights as property.

3. The rights which owners of land abutting on navigable waters have in the water constitute property that may be the subject of bargain and sale, and are part of the owner's estate in the land and enter into its actual value.

[See 27 R. C. L. 1071; 3 R. C. L. Supp. 1545.]

- title to soil under water.

8. The title to the soil under water in inland navigable meandered lakes is held by the state in trust for the benefit of the public for navigation purposes and its various incidents.

[See 27 R. C. L. 1186, 1188, 1367. See also note in 23 A.L.R. 757.] - riparian rights subject to public rights.

9. The right of a riparian owner to extend structures into the water is subject to the public right of navigation and its incidents.

[See 27 R. C. L. 1343; 4 R. C. L. Supp. 1792.]