CASES IN Law and Equity IN THE SUPREME COURT OF THE STATE OF NEW YORK. MORGAN and others vs. KING and others. The provision in the constitution of 1777, declaring that such parts of the common law of England as were in force on the 19th day of April, 1775, should be and continue the law of this state, subject to alteration by the legislature, was nothing more nor less than an adoption of the essential principles of the common law, the application of which, to the condition of things here, often requires a modification, if not an entire change, of its rules; but which is merely the result of the application of general principles to particular facts. Per JAMES, J. The principle is essentially the same, under all circumstances, but the rule, or mode, or standard, of application will vary with the facts, or the nature or character of the subject, to which the application is to be made. Per JAMES, J. In adopting the common law, we have adopted its fundamental principles and modes of reasoning, and the substance of its rules, as illustrated by the reasons on which they are based, rather than by the mere words in which they are expressed. Per JAMES, J. The doctrine is fully established that in fresh water rivers, where the tide does not rise, except in our large lakes and rivers forming the boundary between us and other states and nations, the ownership of the citizen is of the Morgan v. King. whole river-the soil and the water-subject to the servitude of the public interest or right of way. Per JAMES, J. The right of public servitude, in a stream, depends not upon its navigability, in the common law sense of the term, but upon its capacity for the purposes of trade, business and commerce. Any stream, capable of being used in the transportation of any kind of property to market-whether in boats, rafts or single pieces-whether guided by the hand of man, or floated at random on the water, is a public stream, and subject to the public easement. Adopting that rule as a correct exposition of the common law as understood in this country, and applying it to the facts of this case, the Racket river is, and was always, a public highway. POTTER, J. dissented. PPEAL from a judgment. Cause tried by the court without a jury. The action was for obstructing the passage of saw logs floating in the Racket river. The plaintiffs were the owners of certain premises on the said river, on which was erected a dam and saw-mill. About two and a half miles above, the defendants owned the land on both sides of the river, on which stood a saw-mill, and across the stream a dam and boom. Both parties claimed title through the same patent from the state, granted in 1787. The patent covered the whole township, without reservation, except as to mines of gold and silver. The plaintiffs' logs were detained by the defendants' booms, which was the obstruction complained of. The court found for the plaintiffs, upon which report judgment was entered. Brown & Spencer, for the plaintiffs. Dart & Tappan, for the defendants. JAMES, J. In this case the court reported the facts found, and the conclusions of law thereon. No exceptions were taken to the finding of facts; but the exceptions are to the conclusions of law arising upon those facts; and the single question is, has the public a right of way over the waters of the Racket river, at the place of detention; or, in other words, |