Opinion
March 12, 1927.
Appeal from Supreme Court of Albany County.
Cobb Cobb [ Harold E. Simpson of counsel], for the appellants.
Albert Ottinger, Attorney-General [ Frederic J. Merriman and Joseph B. Mulholland, Deputies Attorney-General, of counsel], for the respondent.
The referee has made findings as to the size and depth of each stream, both above the bridges and below to the navigable waters of Cayuga lake, and as to the boats and rafts which have been used and floated thereon. Exception is taken to but one finding of fact, made as follows: "That the said Six Mile Creek and said Cascadilla Creek are navigable streams and public waters. That motor boats, row boats, rafts and skiffs have and do navigate upon both of these creeks from the Cayuga Inlet to points up stream beyond the relator's bridge crossings." (Eighth finding.) We think the evidence justified this finding. ( Economy Light Co. v. United States, 256 U.S. 113, 121; Morgan v. King, 35 N.Y. 454.) Each of these streams discharges into Cayuga inlet, which in turn discharges into Cayuga lake. It is not questioned that the inlet and the lake are navigable waters and are constantly used therefor.
The relator claims that these streams have not been used for commerce in its ordinary sense. We think the evidence shows that they have been. At the same time it is not the kind or extent of use, but the capacity for use, which is the determining factor; and this capacity the court has found. Having such capacity there existed an easement or right in the public to use the stream as a highway. Being a public highway a franchise to cross was necessary. (Tax Law, § 2, subd. 6, as renum. from subd. 3 and amd. by Laws of 1916, chap. 323.) The relator claims it had the right to cross because it owned the bed of each stream at the crossing. (See People ex rel. Long Island R.R. Co. v. Tax Comrs., 148 App. Div. 751; affd., 207 N.Y. 683.) But the ownership of the bed of a public stream is not the ownership of the stream; it is a distinct property right ( Lewis Blue Point O.C. Co. v. Briggs, 198 N.Y. 287, 292) and is held subject to the easement in the public as is the ownership of the soil under a land highway. (Farnham Waters Water Rights, 117, 130.) The relator's right to cross these streams did not rest in the ownership of the beds; it was conferred by the relator's charter of incorporation; and "this right to cross the public waters was a franchise." ( People ex rel. N YC.R.R. Co. v. Tax Comm., 239 N.Y. 183, 186.)
The relator further claims that these streams were dredged; that before such dredging neither was a navigable stream; and that relator's bridges over these streams were constructed before such dredging. ( People ex rel. Long Island R.R. Co. v. Tax Comrs., supra.) There are several answers to this contention: First, the relator has failed to establish that the bridges were built before the dredging was done. The little evidence in the case on this subject indicates the contrary. The burden was on the relator to establish this fact; the presumption is that the assessment is valid. Second, the court has found, and there is evidence to support it, that each of these streams had sufficient capacity for commerce and travel thereon prior to the dredging. Third, the dredging was done by the city of Ithaca. These are not private streams which were improved by the owners thereof to render them navigable, but were streams improved as a public charge and by authority of the municipality; and each stream is an arm of navigable water. (Farnham Waters Water Rights, § 77, p. 366, and note 5, citing Hale De Jure Maris, chap. 3.)
The orders should be affirmed, with costs.
HINMAN, McCANN, DAVIS and WHITMYER, JJ., concur.
Orders affirmed, with costs.