Court of Claims, January, 1922. [Vol. 117. CHARLES H. STEGMEIER, Claimant, v. THE STATE OF NEW YORK. Claim No. 16805. (Court of Claims, January, 1922.) Claims against state-right of state to improve navigability of its waters paramount — state not liable to riparian owners in absence of negligence Ellicott creek - claim by owner of bed of stream for consequential damages to dock and warehouse dismissed — Laws of 1809, chap. 45; Laws of 1813, chap. 47; Laws of 1913, chap. 624. The rights of riparian owners are subject to the paramount right of the state to improve the navigability of its waters, and in the absence of negligence, the state is not liable for consequential damages caused by the lawful exercise of such paramount right. During the years 1919 and 1920 claimant was the owner of lands running "to the Ellicott Creek, thence westerly along said Creek" and including all the rights of his grantors in and to "the Ellicott Creek adjoining said premises and to the center thereof." On the water-front of this land had been erected a dock and warehouse, which was partially supported by piling driven into the bed of the river. By statute (Laws of 1809, chap. 45; Laws of 1813, chap. 47) the state indicated its control of the waters of Ellicott creek specifically reserving the navigable rights of the public therein and claimant took title with notice thereof. In April, 1919, in pursuance of and in conformity with chapter 624 of the Laws of 1913 work was being performed by a duly authorized contractor, under the supervision of state officers, immediately in front of claimant's premises. The entire work was completed August 14, 1919, and as a result thereof, on April 16, 1920, a portion of the bed of the creek in front of claimant's premises gave way taking with it a portion of his warehouse. Upon the hearing of a claim for damages there was no proof to sustain the contention that claimant's damages were caused by the negligence of the state. Held, that as there had been no invasion of claimant's property upon which direct damages could be Misc.] Court of Claims, January, 1922. predicated, even though claimant was the owner of the bed of the stream at the point in question, the damage suffered by claimant was merely a consequential injury to his right of wharfage, which by implication of law as well as the reservation specifically expressed in the statutes of 1809 and 1813, he held subject to the paramount rights of the public, and the claim for consequential damages will be dismissed. CLAIM for damage to warehouse. Norman D. Fish, for claimant. Charles D. Newton, Attorney-General (John H. Clogston, Deputy Attorney-General, of counsel, and Patrick H. Clune, Deputy Attorney-General, with him on the brief), for the State of New York. CORWIN, J. The claimant, during the years 1919 and 1920, was the owner of lands fronting on Ellicott creek in the city of Tonawanda, N. Y., such lands running "to the Ellicott Creek, thence westerly along said Creek" and including all the rights of his grantors in and to the Ellicott Creek adjoining said premises and to the center thereof." On the water-front of this land had been erected a dock and warehouse, which was partially supported by piling driven into the bed of the river. Chapter 45 of the Laws of 1809 declared certain designated waters of Ellicott creek, including those in front of the premises of the claimant, to be "a public highway, provided, however, that the owner or owners of the adjoining lands may erect mills or other waterworks, storehouses or docks on the said waters, so that the same shall not obstruct the navigation thereof." Chapter 47 of the Laws of 1813 declared certain designated waters, including those waters of Ellicott creek in front of the premises of the claimant, to be public highways, except so much of the said waters as may be necessary for the owners of the adjoining 66 Court of Claims, January, 1922. [Vol. 117. land to build store-houses and docks, for the accommodation of boats; provided, the same shall not obstruct the navigation of the said waters; and further, the said owners may erect mills or other works on the waters of (naming a number of creeks, including Ellicott creek) "so as not to obstruct the navigation thereof." * Chapter 624 of the Laws of 1913 authorized the superintendent of public works " to improve that portion of the Ellicott creek between the Erie canal and the city line of the city of Tonawanda by deepening the channel of said creek to such a depth that the bottom of said channel will be on a level with the bottom of the channel of the Erie canal." Said statute further provided that "The work herein provided for shall be done by and under the direction of the superintendent of public works in accordance with plans and specifications to be furnished by the state engineer and surveyor;" and that such work was to be done either by contract entered into by said superintendent or by the forces of the department of public works or partly by both methods in the discretion of the superintendent. In April, 1919, such work was being performed by a duly authorized contractor, in pursuance of and in conformity with the above-mentioned statute, in that portion of Ellicott creek immediately in front of the claimant's premises, the entire work being completed August 14, 1919. As a result thereof, on April 16, 1920, a portion of the bed of the creek in front of claimant's premises gave way, or as the claimant expressed it," slid in," taking with it a portion of his warehouse. For this damage the claimant seeks to be compensated. We believe it to be the settled rule laid down by both Misc.] Court of Claims, January, 1922. the federal courts and the courts of this state that the right of the state to improve the navigability of its waters is paramount, to which the rights of riparian owners are necessarily subject; and that the state is not liable for consequential damages to riparian owners caused by the lawful exercise of that right, in the absence of negligence. Scranton v. Wheeler, 179 U. S. 141; Slingerland v. International Contracting Co., 169 N. Y. 60; Sage v. Mayor, 154 id. 61; Lewis Blue Point Oyster Co. v. Briggs, 198 id. 287. In the case of Sage v. Mayor, supra, Judge Vann, in delivering the opinion of the court, said: "While we think it is a logical deduction from the decisions in this state that, as against the general public, through their official representatives, riparian owners have no right to prevent important public improvements upon tidewater for the benefit of commerce, the principle upon which the rule rests, although sometimes foreshadowed, has not been clearly set forth. Although, as against individuals or the unorganized public, riparian owners have special rights to the tideway that are recognized and protected by law, as against the general public, as organized and represented by government, they have no rights that do not yield to commercial necessities, except the right of preemption, when conferred by statute, and the right to wharfage, when protected by a grant and covenant on the part of the state, as in the Langdon and Williams cases. I think that the rule rests upon the principle of implied reservation, and that in every grant of lands bounded by navigable waters where the tide ebbs and flows, made by the crown or the state as trustee for the public, there is reserved by implication the right to so improve the waterfront as to aid navigation for the benefit of the general public, without compensation to the riparian owner." [Vol. 117. Court of Claims, January, 1922. But it is not necessary to rely upon an implied reservation in the present case. By the early acts of 1809 and 1813, relied upon by the claimant, the state indicated its control of the waters in question, specifically reserving the navigable rights of the public therein, and the claimant took with notice thereof. People v. Canal Appraisers, 33 N. Y. 461, 467. It is true that the above discussion by Judge Vann refers to tidal waters; but there is, in this state and in this country, no such distinction between tidal and non-tidal waters as existed at common law. Ellicott creek, while a non-tidal inland stream, is, at the point in question, one of those streams which "are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water;" and is, therefore, a navigable stream. The Daniel Ball, 10 Wall. 557; The Montello, 20 id. 430; Morgan v. King, 35 N. Y. 454. Nor does it matter whether the ownership of the bed of the stream is in the claimant or in the state; because, if in the claimant, his title is necessarily subject to the public servitude of navigation. Nichols Em. Dom. § 139; Farnham Waters & Water Rights, § 29; Scranton v. Wheeler, supra, 163; United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53; Buffalo Pipe Line Co. v. N. Y., L. E. & Western R. R. Co., 10 Abb. N. C. 107; Lehigh Valley R. R. Co. v. Canal Board, 146 App. Div. 151, 159; West Virginia Pulp & Paper Co. v. Peck, 82 Misc. Rep. 76. Judge Vann notes an exception as to the right to wharfage, when protected by a grant and covenant on the part of the state, in conformity with the rule laid down in Langdon v. Mayor of City of N. Y., 93 N. Y. 129, and Williams v. Mayor of N. Y., 105 id. 419; but the claimant cannot claim the benefit of this excep |