[1] The state had the right to improve the navigability of the Mohawk river, but could not do so in-such a way as to throw water and ice upon the claimant’s land, so as to injure him either temporarily or permanently. Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L. Ed. 557; U. S. v. Lynah, 188 U. S. 445, 23 Sup. Ct. 349, 47 L. Ed. 539; Lowndes v. U. S. (C. C.) 105 Fed. 838. It could excavate in the channel of the stream for a lock, and build a cofferdam or other structure necessary to its construction; but it could not do so in a manner which would involve itself in a trespass upon private property, or in the taking of private property for public use, without liability for damages therefor. In the exercise of its *27power to improve the navigability of the stream, it could place a lock or dam in it, but not so that water would be temporarily or permanently set back upon private property, so as to amount to a taking of the property, without making compensation.
[2, 3] In the work in question the state owed the claimant the duty . by law to so carry on the work as not to set the water back upon his land. Had the state done the work itself by its servants or agents, its liability probably would not be questioned. It cannot relieve itself upon the plea that the work was done by an independent contractor, because of its existing duty to so do the work as not to injure claimant (Storrs v. City of Utica, 17 N. Y. 104, 72 Am. Dec. 437), and because the work itself in this instance necessarily caused the damages (Berg v. Parsons, 156 N. Y. 109, 50 N. E. 957, 41 L. R. A. 391. 66 Am. St. Rep. 542). Whether or not the state had done the work itself, by its agents and servants or by an independent contractor, the construction could not have been built without cofferdamming, which renders the case analogous to those cases where the contract calls for a public sewer in a public street, which necessarily requires an excavation. Deming v. Terminal Ry. of Buffalo, 169 N. Y. 1, 61 N. E. 983, 88 Am. St. Rep. 521. There was no negligence in the manner of doing the work, and to relieve the state would extend the doctrine of nonliability for the acts of independent, contractors much farther than the law has gone.
This claim comes under the exception to nonliability laid down by Judge Martin in Berg v. Parsons, 156 N. Y. 109, 115, 50 N. E. 957, 41 L. R. A. 391, 66 Am. St. Rep. 542, and the claimant should recover.