public  improvements  made  by  the  State,  are  entitled
to  compensation  for  damages  sustained."  Senator
Verplank,  who  delivered  the  only  opinion  reported,
insisted  that  the  principle  adopted  here  did  not  conilict
with  the  decision  in  The  Canal  Appraisers  v.  TibbitSy
(17  Wend,  supra),  as  there  were  facts  and  circum-
stances in  that  case,  upon  which  the  decision  may  well
be  sustained,  which  did  not  exist  in  the  case  before
him.
In  Child  V.  Starr,  which  was  brought  up  to  the
Court  of  Errors,  and  is  reported  in  4  Hill,  369,  the
question  did  not  properly  arise ;  but  it  was  thought
by  the  Chancellor  that  the  above  case  of  Kempshall
had  settled  the  rule  here.  The  next  case  was  that  of
The  People  v.  Tibhetts,  (19  N.  Y.  R.  623),  which  was
an  action  for  rent  reserved  by  a  lease  of  one-half  the
surplus  waters  of  the  Hudson"  river  at  the  Troy  dam,
executed  by  the  Canal  Commissioners  to  George  Tib-
bits,  the  father  of  the  defendant.  The  defense  was,
that  George  Tibbits,  being  owner  of  the  lands  border-
ing the  river  when  the  lease  was  executed,  was  owner
of  the  surplus  water  mentioned  ;  and,  hence,  the  lease
was  without  consideration.  The  court  held,  that  the
defendant,  being  in  possession  as  tenant,  could  not
contest  the  title  of  his  landlord.  The  question  as  to
what  shall  constitute  a  river  navigable,  was  discussed,
and  this  proposition  announced.  ' '  A  river  is  consid-
ered as  an  arm  of  the  sea,  and,  as  such,  navigable,  so
far  as  the  tide  rises  and  falls.  That  is  the  technical
rule  of  early  establishment,  and  of  unifomi  and  con-
stant adherence."  But  the  case  being  decided  on
other  points,  the  remark  is,  of  ■  course,  obiter.
