access to the river from the upland, and that at times it maintains standing cars thereon, thus interfering with the plaintiffs' riparian rights. This does not warrant that part of the judgment which enjoins the defendant absolutely from operating its road upon the sixty feet, and requires it to remove the track 89 and ties, and never to replace them, but it does entitle them to some measure of relief. The defendant, under the covenant in the deed from Flagg, as well as by its general relations and obligations to the plaintiffs as riparian owners, is bound to construct and maintain a suitable, safe, and reasonably convenient way or ways over its railroad which will furnish access to the water-front for all such purposes as the plaintiffs have the right to resort to it as a public highway. Moreover, substantially the same duties and obligations have been imposed upon the defendant by the law of its creation: Laws of 1846, c. 216, secs. 1416. Wherever it crosses bays or streams it must, so far as practicable, restore them to their former usefulness. The owners of docks or water rights upon the river, outside the railroad, are protected by requiring the defendant to extend and improve the same when cut off, and generally to restore and preserve all property rights, so far as practicable.

Where the roadbed passes between the uplands and the usual place of access to the river, and cannot be conveniently crossed, it is the duty of the corporation, at its own expense, to construct and maintain convenient passes, or roads, across or under the railroad for the passage of persons, cattle, carriages, and teams from the uplands to the river front. The findings in this case are to the effect that the defendant has not performed these duties and obligations, so far as the plaintiffs are concerned, and that it has interfered with the enjoyment of their riparian rights to the extent and in the particulars mentioned. The extent of the relief to which they are entitled is that the defendant shall be required by the judgment to perform these duties and obligations.

This result is in harmony with the doctrine of the case of Rumsey v. New York etc. R. R. Co., 114 N. Y. 423. There in a marked difference between that case and this, at least in the form of the action. In the former the plaintiff attempted to protect his riparian rights by an action to recover damages. In this case there is no claim made for damages sustained, but the owner has asked simply equitable relief against any future invasion of his easements. In the former

case we held, that so far as the owner had sustained 90 damages in consequence of any encroachments by the defendant, that he was entitled to recover. In this case we hold that in so far as the facts found justify the conclusion that the defendant has invaded the plaintiffs' rights, or is invading them, they are entitled to relief. In that case it had been adjudged in previous actions that the defendant was obstructing access to the river without any right or title whatever as against the upland owner. In the present case we hold that the defendant has a valid grant of the land from the state, good against all the world, except the plaintiffs' right of access to the river, and that, so far as necessary for the protection of these rights, the plaintiffs are entitled to prevail.

The judgment should, therefore, be modified in such manner as to give to the plaintiffs this relief, and this alone. The order should be so framed as to accomplish this result, and, if its terms cannot be agreed upon by the parties, then it must be settled by one of the judges of this court.

The judgment, as thus modified, should be affirmed, without costs to either party.

PECKHAM, J. The court below and the counsel for the plaintiff upon the argument before us have, as it seems to me, misconceived the extent and nature of the decisions of this court in Rumsey v. New York etc. R. R. Co., 114 N. Y. 423, New York Cent. etc. R. R. Co. v. Aldridge, 135 N. Y. 83. While concurring in the views set forth in the very satisfactory opinion of Judge O'Brien, I only desire to say a word specially regarding those two cases. The point therein decided was that the ancestors or grantors of the individual parties to those actions had not by their grants to the railroad company of the strips of land under water or along the line of and below and above high-water mark, deprived themselves of or clothed the railroad company with the character of riparian owners. We accordingly held that these individual parties could in their character of riparian owners still take title to lands under water which were adjacent to their upland, and the intervention of the railroad embankment did. not form an obstacle. We did not decide that the 91 railroad company, under the provisions of sections 25 and 49 of the General Railroad Act of 1850, could not take a grant of the title of the state for the purposes of the road from the commissioners of the land-office covering land under water upon

such terms as they might agree to. In both of the cases there was a grant to the individuals of land under water, and they claimed title under their patents from the state. In the Rumsey case the defendant had no pretense of title, and relied upon the defense that the plaintiff's were not riparian owners, and therefore obtained no title by virtue of the patent from the land commissioners. In the Aldridge case the defendant had a patent which was attacked as not carrying any title because it was asserted the defendant was not a riparian owner, and could take no title by such patent to the lands under water. Although the plaintiff in the Aldridge case had a patent it was subsequent to the one granted to defendant. In both cases the patents to the individuals were held good because the patentees were, notwithstanding the grants to the railroad company, held to have continued to be upland proprietors within the meaning of the statute. In the case at bar the plaintiffs have no patent from the state granting to them the title to any lands under water, and they never had any title to such lands and have none now. They simply have those rights as riparian owners which Judge O'Brien has described, while the defendant has obtained the title of the state to the lands under a patent good by reason of the provisions of the Railroad Act of 1850.

All concur.

Judgment accordingly.

ACCRETIONS.-Landowner, When Entitled to: See Coulthard v. Stevens, 84 Iowa, 241; 35 Am. St. Rep. 304, and extended note.

PUBLIC LANDS GRANT OF-COLLATERAL ATTACK ON.-A patent issued to public lands by the proper officers is conclusive in a court of law, and cannot be collaterally attacked: Gale v. Best, 78 Cal. 235; 12 Am. St. Rep. 44, and note, with the cases collected; Chever v. Horner, 11 Col. 68; 7 Am. St. Rep. 217, and note.

WATERS.LANDS UNDER NAVIGABLE WATERS BELOng to the State: Lamprey v. State, 52 Minn. 181; 38 Am. St. Rep. 541; Lewis v. City of Portland, 25 Or. 133; 42 Am. St. Rep. 772. See, also, the notes to Commonwealth v. Manchester, 23 Am. St. Rep. 838, and Miller v. Mendenhall, 19 Am. St. Rep. 228.

WATERS-RIPARIAN RIGHTS-ACCESS TO NAVIGABLE WATERS.-A riparian owner of lands on navigable waters has a right of access thereto for the purpose of making a landing, pier, or wharf, for his own or the public use, subject to such rules as the legislature may impose, and he is entitled to compensation for any interference with such right: Rumsey v. New York etc. R. R. Co., 133 N. Y. 79; 28 Am. St. Rep. 600, and note; to the same effect, see Prior v. Swartz, 62 Conn. 132; 36 Am. St. Rep. 333, and note, with the cases collected. See especially the extended note to Miller v. Mendenhall, 19 Am. St. Rep. 231.

PEOPLE V. GARDNER.

[144 NEW YORK, 119.]

EXTORTION, ATTEMPT TO COMMIT.-THIS CRIME DEPENDS ON THE MIND AND INTENT OF THE WRONG DOER, and not on the effect or result upon the person sought to be coerced. Hence, a person may be guilty of an attempt to commit it though he does not, as he intends, produce fear on the part of the person from whom he attempts to extort. CRIMINAL LAW.-THE ATTEMPT TO COMMIT A CRIME has been made when the opportunity occurs, and the intending perpetrator has done some act tending to accomplish his purpose, though he is baffled by an unexpected obstacle or condition. EXTORTION. WHERE ALL THE ELEMENTS OF THE CRIME OF AN ATTEMPT to commit extortion are present the person having the guilty intent cannot escape conviction on the ground that the person of whom he sought to extort was acting as a decoy, and therefore was not put in fear by the threats of the accused. CONSTITUTIONAL LAW.-ACCUSED GIVING EVIDENCE AGAINST HIMSELF, WHAT IS NOT A COMPELLING.-The fact that a person on trial charged with a criminal offense is compelled to arise for the purpose of enabling a witness to identify him is not a violation of a constitutional provi sion declaring that he shall not be compelled to be a witness against himself. Every court has the power to require every person who is present as a party, or who is a witness under examination, to disclose his or her face to the court or jury. CRIMINAL PROSECUTION EVIDENCE.-Where, on the part of the prosecu tion, evidence is received that the accused was frequently in the company of a person whom he is charged with attempting to extort money from, and that he visited her at her house, and in saloons, etc., it is error to exclude evidence on the part of the defendant that in these acts he was under the direction of the officers of a society for the prevention of crime, and seeking to aid them in bringing other persons to justice.

Henry B. B. Stapler, for the appellants.

John W. Goff, for the respondent.

123 EARL, J. The defendant was indicted for, and, upon his trial, convicted of, an attempt to commit the crime of extortion in the city of New York, on the fourth day of December, 1892, by attempting to obtain one hundred and fifty dollars from Catharine Amos by threatening to accuse her of keeping a house of prostitution. The following are the sections of the Penal Code under which he was convicted:

"SEC. 552. Extortion is the obtaining of property from another, with his consent, induced by a wrongful use of force or fear, or under color of official right."

"SEC. 553. Fear, such as will constitute extortion, may be

induced by a threat" [among other things] "to accuse a person of any crime."

"SEC. 34. An act done with intent to commit a crime, and tending, but failing, to effect its commission, is an attempt to commit that crime."

"SEC. 685. A person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime was consummated, unless the court, in its discretion, discharges the jury and directs the defendant to be tried for the crime itself."

Catharine Amos, who was the principal witness for the people, testified that for nine years she had been the keeper of a house of prostitution in the city of New York, and that 124 the defendant, in December, 1892, came to her and agreed with her that if she would pay certain sums of money to him, and especially the sum of one hundred and fifty dollars, he would not accuse her of the crime, and that, from October 19, 1892, to December 4, 1892, she had been acting as a decoy of the police and trying to induce the defendant to receive money from her under such circumstances as would render him guilty of a crime, and enable the police to arrest and convict him of it.

The evidence tended to show the existence of every element constituting the crime of extortion except that Mrs. Amos in paying the money exacted by the defendant was not actuated by fear.

It is urged on behalf of the defendant that the fact that his threats did not inspire fear inducing any action on the part of Mrs. Amos, an element essential to constitute the completed crime of extortion, renders it impossible to sustain an indictment and conviction for the lesser crime of an attempt at extortion; and so a majority of the judges constituting the general term held. We are of opinion that those learned judges fell into error.

The threat of the defendant was plainly an act done with intent to commit the crime of extortion, and it tended, but failed, to effect its commission, and, therefore, the act was plainly within the statute an attempt to commit the crime. The condition of Mrs. Ainos' mind was unknown to the defendant. If it had been such as he supposed, the crime could have been, and probably would have been, consummated. His guilt was just as great as if he had actually succeeded in his purpose. His wicked motive was the