the concession of both parties that the line of riparian proprietorship along Lake Ontario extends but to high-water 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." After citing authorities from other states which indicate that the weight of authority is in favor of the same rule, he concludes his opinion by stating the holding of the court as follows31:

"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 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. This would carry the line to low-water mark in case the grantor has title to that line. (Child v. Starr, 4 Hill, 369; Gouverneur v. Nat. Ice Co., 134 N. Y. 355; Van Winkle v. Van Winkle, 184 N. Y. 193.) Therefore, there passed to plaintiffs' 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 they did was done above ordinary low-water mark. The result, therefore, reached by the trial court was right."

81 At p. 131.

The case of Chism v. Smith82 relates to Lake George and calls for brief notice. 83 For our purposes it is sufficient to state that it was an action in ejectment at Special Term, Warren county, to recover possession of certain land along the shore of Lake George upon which, or a portion of which, the defendant had erected a private boathouse and dock. The plaintiffs introduced in evidence in support of their title certain deeds the description in each one of which read in part as follows: "To the shore of Lake George at low water mark; thence along the shore of Lake George at low water mark as it winds and turns to the place of beginning." The judgment entered on the decision of the trial court was partly in favor of the plaintiffs and partly in favor of the defendant and both sides appealed to the Appellate Division, Third Department. Houghton, J., writing the opinion in the appellate court, said:82a "It was conceded on the trial, and found by the court, that the waters of Lake George are public waters, and that the owners of the upland have title only to low-water mark, the title to the bed of the lake being in the people of the State." The judgment was affirmed in part and reversed in part, and a new trial granted 823 on the ground that ejectment was not the proper remedy. On the second trial the court dismissed the complaint as not stating a cause of action. Judgment was affirmed by the Appellate Division 2 but the Court of Appeals reversed the Appellate Division and grated a new trial. 82d e The ownership of the bed of Lake George was apparently not referred to in this branch of the litigation.

On the third trial at Special Term the court found as facts "1. That the lands of the plaintiffs described in the complaint are bounded on the west by the high water mark of Lake George," and "2. That Lake George is *** a navigable body of water owned by the State of New York;" and dismissed the complaint. Upon appeal to the Appellate Division, the judgment was again reversed and a new trial granted, the court disapproving of the finding that the plaintiffs' title extended only to high-water mark. 82 Lyon, J., writing the opinion, said:

"We think the holding of the trial court that the plaintiffs' title extended only to high-water mark was contrary to the

(a) 138 App. Div. (N. Y.) 715, 716 (May, 1910); (b) order amended in 140 App. Div. 885 (Sept., 1910); (c) 150 App. Div. 893 (1912); (d) reversed in 210 N. Y. 198 (Feb., 1914); (e) motion for reargument denied in 212 N. Y. 564 (June, 1914); (f) 174 App. Div. 332, 334-336 (1916).

Lake George is about 33 miles long, and has an average width of about 1.4 miles. It has a water surface of about 45 square miles. See, also, the Report of the State Engineer and Surveyor to the legislature for 1907 at p. 372.

evidence, and calls for a reversal of the judgment. * *

"The State is not disputing plaintiffs' claim of ownership to low-water mark. The defendant was not shown to have been in any way privy to the rights of the State. The State, if possessed of the title to the bed of the lake, unquestionably had the right to convey its rights to the plaintiffs' predecessor in title. This proof of upwards of twenty years' record title and possession was prima facie sufficient for the maintenance of the action, especially as against the defendant, a stranger to the title. (9 R. C. L. 844.) While the defendant claimed that the title below high-water mark was in the State he offered no proof whatever to that effect. The finding of the court seems to have been based upon the legal conclusion that the State was possessed below high-water mark of the title of all fresh water navigable lakes. In the case of Oakes v. De Lancey (133 N. Y. 227, 231) the plaintiff sought to recover the sum paid by him to the defendant for about four acres of land situated between high and low-water mark on Long Island Sound and embraced in the lands purchased by the plaintiff from the defendant, the plaintiff claiming that the defendant's title did not in fact extend below high-water mark. FINCH, J., in writing the opinion said: "The appellant further insists that the title to the shore is presumably in the State. That, with us, is the common-law rule, but does not exclude the possibility of title in the grantor derived from the sovereign or obtained by prescription. There is no question of title in the case and we know nothing about it. Certainly we ought not to presume a want of title in the grantor in order to construe a description which implies such title.' **

"The ownership of the bed of Lake George to high-water mark is probably susceptible of proof by reference to grants by the State or by its Dutch or English predecessors in This can very likely be satisfactorily established upon the retrial of the action."

After the reversal reported in 174 Appellate Division 332, the only further proceeding in the case was a stipulation discontinuing the action without costs to either party.

We shall now endeavor to summarize the law on the subject of

the title to beds of lakes in New York State, as laid down in, or suggested by, the cases discussed in this article.

In the last analysis, the problem before us is simply one phase of the broader subject of the construction of deeds in general. The primary rule of construction is admirably stated in the following quotation from the article on Deeds, in Ruling Case Law:84

"The court will effectuate the lawful purpose of deeds, as it will of all other instruments, if this can be done consistently with the principles and rules of law applicable. The primary rule to be observed, therefore, is that the real intention of the parties is to be sought and carried out whenever possible, and statutes to that effect are found in many jurisdictions. All rules of construction are simply means to a given end, being those methods of reasoning which experience has taught are best calculated to lead to the intention, and generally no rule will be adopted that leads to the Idefeat of the intention. So whatever may have been the earlier doctrine, it is now thoroughly settled that technical rules of construction are not favored, and must not be applied so as to defeat the intention. In modern times the more sensible rule obtains, in all cases to ascertain and give effect to the intention of the parties as gathered from the entire instrument, together with the surrounding circumstances, unless such intention is in conflict with some unbending canon of construction or settled rule of property, or is repugnant to the terms of the grant. Furthermore, the primary or dominant intent must prevail over a secondary intent, where the two are inconsistent, wherefore if two clauses are inconsistent they must be construed so as to give effect to the intention of the parties as collected from the whole instrument. But when the court has exhausted every means of determining the actual intention of the parties, resort to the arbitrary and technical rules of construction becomes necessary."

A secondary rule of construction is that "A deed is construed most strongly against the grantor and in favor of the grantee. This rule has been called one of the most just and sound principles of the law, because of the fact that the grantor selects his own language ***. If, therefore, the deed can inure in different ways,

84R. C. L., Deeds, sec. 93.

the grantee, it is said, may take it in such way as will be most to his advantage."85

With these general considerations as to the construction of deeds in mind, it will be helpful, I think, in attempting to summarize the results of the cases discussed in this article, to divide the lakes, previously referred to, roughly into three groups.

I.

86

We place in the first group those ponds or lakes which are not only small, but which, generally speaking, are not capable of navigation, or, at least, as a matter of fact are not navigated, in the commercial sense of that term. Whatever use they have is confined, by their own inherent limitations, to the upland owner or owners.87 The courts haye had no great difficulty in working out sensible results with respect to the ponds or lakes falling in this group. If a riparian owner gives sticaeed which carries the land conveyed to the water's edge, and he does not expressly confine the deed to the upland, the presumption is that he intends also to convey whatever adjoining land under water that he may own. What benefit would it be to him, as a practical matter and as a general proposition, to retain the ownership of the land under water-what use could he put it to? The natural thing to do, under the circumstances, is to assume not only that the grantor intended to part with the land under water, but also that the grantee took it for granted, in the absence of restrictive words in the deed, that he was getting everything that the grantor had the right to convey. In other words, it is easy to arrive at what was supposedly the intention of both parties.88

2. In the second group we place those lakes which are not only capable of navigation, but which was a matter of fact have been navigated, or are being navigated, by common carriers of passengers or freight or both.89 They are, however, distinguished from the

868 R. C. L., Deeds, sec. 104.

86This grouping is not suggested as a legal classification. It is resorted to mainly because (1) it permits certain generalizations to be drawn from the cases considered as a whole, and (2) it affords the opportunity to emphasize certain phases involved in some of the cases, which must be borne in mind in order properly to understand them.

87These are the ponds or lakes discussed on pages 165-171 of the first installment of this article published in the February, 1924, number.

88 But even in the case of small bodies of water falling in the group now under consideration, this presumption may be rebutted. In Town of Southampton v. Flanders Club, 113 Misc. (N. Y.) 451 (1920), involving Bellows pond in the town of Southampton on Long Island, having an area of about eighteen acres, it was held that the evidence showed that it was not the intention of the town to pass title to the land under water although, apparently, the defendant owned the entire upland surrounding the pond.

89Naturally enough, lakes falling in this group are apt to be substantially larger than lakes falling in the first group; but, considered from the standpoint