The facts necessary to be stated to disclose the legal propositions involved in the controversy at bar are simple.
In 1826 the Legislature passed an act to incorporate the Cohoes Company and granted it the right and franchise to “ erect and maintain a dam across the Mohawk River, opposite the lands belonging to said corporation, above the Great Cohoes Falls, for supplying water necessary for the purpose of said corporation; provided always, that nothing in this act contained shall be so construed as to injure, affect or impair the rights and privileges of any person or persons, or of any corporation heretofore granted, or to impair or injure the rights and privileges of the people of this State.” (Laws of 1826, chap. 90, § 4.)
“ This act shall be deemed and considered in all courts and *348places as a public act, and the same shall be construed benignly and favorably, for every beneficial purpose.” (Id. § 10.)
“ The rights and privileges hereby granted shall be deemed to be taken subject to the right of the Legislature hereafter to alter, modify or repeal the same.” (Id. § 13.)
In 1884 the Legislature passed an act in which it authorized the Cohoes Company for the purpose of securing a better supply of water for its hydraulic and manufacturing operations, or for either, to erect a dam across the Mohawk river above the present aqueduct of the Erie Canal at Crescent, Saratoga county, and to maintain the same and the pond or reservoir of water thereby made; and to excavate or construct channels or canals along or in the bed of said river for the purpose of drawing and using the water from the said dam or reservoir for the hydraulic or manufacturing operations of said company. (Laws of 1884, chap. 486, §1.)
“ The said company in erecting and maintaining said dam and its abutments and appurtenances may use the bed of said river, and any lands of the people of the State of New 'York now not used or required for said canal, which were formerly occupied as a part of the Erie Canal by the former aqueduct of the Erie Canal at Crescent, now destroyed and its approaches now disused, and any lands adjacent thereto, not now so used or required. The said dam shall be located where its abutments can be placed upon lands now owned, or which, or the right to abut thereon, shall hereafter be acquired by said company, or upon said lands of the people of the State of New York, or partly upon each.” (Id. § 2.)
The grant of the right and franchise described in the act of 1884 is not made in words subject to the provisions of the act granting the right and franchise to build what is known as the Cohoes dam.
The Cohoes Company in 1831 built a wooden dam some 4,000 feet above the Cohoes Falls on the Mohawk river at an elevation of 154.2 Barge Canal datum.
In 1865 the Cohoes Company built a stone dam behind the wooden dam having the same elevation at its crest.
In the promotion of its corporate purposes the Cohoes Company expended during ninety years hundreds of thousands of dollars to furnish water and power to upwards of thirty-two concerns that used the same.
Whatever dispute there may be as to the right of the Cohoes Company to maintain its dam with a crest of 157 f et Barge Canal datum, there is no dispute of its right to maintam its dam with a crest of 154.2 Barge Canal datum.
*349Under the grant to the claimant's predecessor in title found in chapter 486 of the Laws of 1884, supra, the Cohoes Company had acquired or purchased lands along the Mohawk river above and below the canal aqueduct at Crescent and, as above enacted, the right to use the State's lands. The Cohoes Company also, as required by this act, had gone to the expense of preparing a plan for such dam and secured the approval of the Superintendent of Public Works and the State Engineer and Surveyor of the same. The purpose of the company in acquiring such right and franchise was the extension and enlargement of its business or its protection against competition.
Upon the river near the site of the new dam claimant’s predecessor expended $377 on the same. (Claimant's Exhibit 104.)
Besides all this it is the contention of the respondent here that the act of 1884 must be read in connection with the act of 1826; that these two acts reflect the single purpose of the corporation. To that contention I do not yield. However, if such construction be assumed then it follows that the great development already undertaken at the Cohoes dam should function as part of the acceptance and use of the rights granted for the dam above the canal aqueduct, because such new dam was to be used in connection with the first.
In the years between 1884 and 1895 agitation of the project to enlarge the canal system of the State took place which resulted afterwards in chapter 79 of the Laws of 1895; chapter 794 of the Laws of 1896; chapter 43 of the Laws of 1897, and chapter 569 of the Laws of 1897, contemplating the expenditure of $9,000,000 for the enlargement of the canals. Naturally there was a halt in the building by the claimant’s predecessor of the dam above the canal aqueduct. The wisdom and foresightedness of the Cohoes Company in securing the means by the franchise of 1884 of meeting the needs of its developing business cannot be doubted.
The State in presenting its requests to find to the Court of Claims asked it to find “ That the franchise right, if any, possessed by the Cohoes Company, to construct a dam at the site referred to in Chapter 486, Laws of 1884, was abandoned and lost prior to November 30, 1909.” That request was refused.
Again the State requested this finding: “ That Chapter 147, Laws of 1903, operated to revoke and annul the franchise, if any, granted to the Cohoes Company by Chapter 486, Laws of 1884.” This request to find was also refused.
This case cannot be decided without determining the property rights and privileges of the claimant in the Mohawk by virtue of the acts of 1826 and 1884.
*350The Mohawk river neither in 1826 nor in 1884 was navigable as a matter of fact east of Schenectady. When the Cohoes Company built its dam above the falls the character of the river at such site and for several miles above was that of rifts, rapids and shallows. The effect of building a dam in such place was to convert the river from a useless waste into a utility to serve a private and public purpose. The grants were of lands in the river bed of sufficient area to place suitable dams upon and to pond the waters and use them for manufacturing purposes and return them to the river. The claim is made by the respondent that the Legislature was without power to grant away any part of the jus publicum. The true line of distinction between the cases which hold that a State may or may not convey away its jus publicum lies in the test as to whether such grant constitutes a reasonable exercise of the State’s sovereign power. (Langdon v. Mayor, etc., of City of N. Y., 93 N. Y. 129.) On this subject in a recent case the United States Supreme Court has said, quoting Mr. Justice Field in Illinois Central Railroad v. Illinois (146 U. S. 387), relating to a grant of more than 1,000 acres in front of the city of Chicago: “ It is grants of parcels of lands under navigable waters that may afford foundation for wharves, piers, docks and other structures in aid of commerce, and grants of parcels which, being occupied, do not substantially impair the public interest in the lands and waters remaining, that are chiefly considered and sustained in the adjudged cases as a valid exercise of legislative power consistently with the trust to the public upon which such lands are held by the State. But that is a very different doctrine from the one which would sanction the abdication of the general control of the State over lands under the navigable waters of an entire harbor or bay, or of a sea or lake. Such abdication is not consistent with the exercise of that trust which requires the government of the State to preserve such waters for the use of the public. The trust devolving upon the State for the public, and which can only be discharged by the management and control of property in winch the public has an interest, can not be relinquished by a transfer of the property. The control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining. It is only by observing the distinction between a grant of such parcels for the improvement of the public interest, or which when occupied do not substantially impair the public interest in the lands and waters remaining, and a grant of the whole property in which the public is interested, that the language of the adjudged *351cases can be reconciled.” (Appleby v. City of New York, 271 U. S. 364, 394.)
In the grants in question there was no impairment of the public interest, the rifts and shallows were submerged and navigation aided.
Chief Justice Taft points out the exceptions that have been recognized in this State and reviews such cases to conclude that “ the State and the city had parted with the jus publicum and the jus privatum; and that the city can only be revested with them by a condemnation of the rights granted.” (Appleby v. City of New York, supra, 399.)
The right to build the dams and occupy the bed of the river and pond the waters and distribute them by canals constituted special franchises ■— vested interests and property — and of such property the owner cannot be divested without compensation. (First Construction Co. v. State of New York, 221 N. Y. 295; Waterford El. L., H. & P. Co. v. State of New York, 208 App. Div. 273; affd., 239 N. Y. 629; Langdon v. Mayor, etc., of City of N. Y., 93 id. 129.)
The claimant’s Cohoes dam property was injured and its franchise to build a dam above the canal aqueduct taken by the State in the building of the Crescent dam and canalizing the Mohawk river above it, and the State contends that it cannot be made to pay for such injuries.
The claims are, first, that it had no right to raise its dam from a crest of 154.2 to 157; and second, that it waived its claim for any damages to such dam and the pond created thereby.
I am unable to discover that the claimant possessed any right to raise its dam from 154.2 to 157. It certainly had no prescriptive right, for it did not erect a permanent structure at an elevation of 157 until the year 1914. It had no grant from the State to build a dam at such particular elevation.
It is true that the grant from the State did not specify the elevation at which it should build its dam but in accepting the right and franchise to build a dam the Cohoes Company built it at 154.2. That dam was 10 feet high above the river bed. The height of it was determined by the predecessor of the claimant. The dam met the needs at the time of the granting and its construction represented the completed act of the parties. (Farnham Waters & Water Rights, 2258; Dexcer v. Jefferson Paper Co., 22 Misc. 389; Strong v. Benedict, 5 Conn. 210.)
This constitutes an application of the rule relating to the construction of contracts indefinite in terms that if one would know what the parties intended he may look at acts done under it. *352(People v. O’Brien, 111 N. Y. 1.) As to the claim of waiver of injury to pondage rights behind the dam at 154.2. The claim is not limited to damages to pondage rights behind a crest of 157. It comprehends all damages to the claimant consequent upon the building of the Crescent dam.
The contention of the respondent that claimant has waived its claim for damages to its Cohoes dam and pond rests upon the proposition that the State would accede to the claimant’s claim, that it had a right to maintain the dam at a crest of 157. This is what the claimant says: “ Claimant in abandoning its claim for compensation for the destruction of pondage created by its present dam, and by asking the Court to hold that the dam at its present crest elevation is a lawful structure, proceeds upon the theory that the right of claimant to erect and maintain a dam at 157 feet crest elevation at this site, is superior to the rights of the State, except only the State’s right to construct and maintain the barge canal as constructed and now maintained. Or to put it another way, the rights of the Cohoes Company and of claimant under the act of 1826, were and are, subject to the right and power of the State to do what it has done in the building of the barge canal; but claimant may maintain under the act of 1826, and under its rights as a riparian owner, its present dam with a crest elevation of 157 feet, since that dam at such crest elevation does not impair or interfere with the full enjoyment by the State of the navigation project which it has created.”
The State has not acceded to this contention — this understanding of the appellant. The. concession claimed in the stipulation is a conditional one and the State has not accepted the condition. (McLellan v. Goodwin, 43 App. Div. 148, 153; Hallow v. Hallow, 200 id. 645; Humphries v. Shapiro, 187 id. 96; People ex rel. Tappin v. Cropsey, 176 id. 415; Magnolia Metal Co. v. Pound, 60 id. 318.)
The separation of the claimant from its special franchise involves title to the bed of the river and must be effected by some formal deed or grant.
I am not satisfied that an attorney has the right to give his client’s property away under a mistaken idea of his client’s right. The assumption that the State could take his client’s special franchise property away without compensation was erroneous as was the claim that the claimant possessed the right to flow the water two feet eight inches against the Crescent dam. As hereinbefore pointed out the claimant has no such right.
The facts that in its amended order claiming a specific amount of damages for the destruction of part of its flowage rights at the Cohoes dam the amount is not stated and that its requests to find *353do not contemplate damages to its Cohoes dam and pond are scarcely of moment.
For the State to take without compensation so great an amount of property as is represented by the diminution of the flowage behind the dam with a crest of 154.2 is to unjustly enrich itself on the failure of a claimant to have his property rights presented to the court. If the owner claimed pay for 100 acres when 1,000 acres were taken by the State and that fact became apparent to the court, would it discharge its duty in making an award for the 100 acres?
The function of courts is to do justice. They are responsible for the grist of the mill and must construe pleadings and claims of counsel with liberality to secure the rights of claimants and not to deny them. (Morris Plan Co. v. Globe Indemnity Co., 253 N. Y. 496.)
The claimant has also a claim for damages for the destruction of the right and special franchise to build a dam with a crest at 168 above the canal aqueduct. The State contends that such right and franchise was repealed by chapter 147 of the Laws of 1903, the Barge Canal Act.
The Barge Canal Act made no mention of the acts of 1826 or 1884 and in no manner directly referred to them nor to the rights and special franchises of the Cohoes Company. The destruction and injury to said special franchises was not accomplished by legislation. The location of the Crescent dam was the act of the State Engineer. (Laws of 1903, chap. 147, §§ 3, 4.) Instead of taking “ lands, structures and waters ” without compensation, in the act compensation is specially provided for. (§ 4, supra.)
Besides the State to succeed in its contention must overthrow the sound doctrine applicable to repeals that the law does not favor repeals by implication. There was no repugnance between the acts growing out of the location of the Crescent dam by the State Engineer and the acts of the Legislature of 1826 and 1884. The dam might well have been located at another place. (Sutherland Stat. Const. § 138.) If we assume that the language of chapter 147, supra, effects a repeal of the grant of a special franchise then the State is confronted with the rule clearly stated by Chief Judge Huger in People v. O’Brien (supra, 37): “We think that there are no reported cases in which the judgment of the court has ever taken the franchises or property of a corporation from its stockholders and creditors through the exercise of the reserved power of amendment and repeal, or transferred it to other persons or corporations, without provision'made for compensation.” Upon this proposition all of the five judges sitting agreed. (See concur*354ring memorandum of Andrews and Earl, JJ., if 2.) The argument of the chief judge, well fortified by numerous authorities, requires no new statement here.
The argument of the respondent that it has the power to take claimant’s property without compensation is claimed to be supported by several authorities. Let us examine them.
Lewis Blue Point Oyster C. Co. v. Briggs (198 N. Y. 287, 295). That case involved the right of the government to improve navigation where there was an oyster bed within the jus publicum to which the jus privatum is subject. Judge Vann wrote that Monongahela Navigation Co. v. United States (148 U. S. 312) “is not analogous ” to the oyster bed case. Neither is it analogous here for the claimant has accepted the property of the State and made improvements on the strength of it.
Sage v. Mayor (154 N. Y. 61) states a case between riparian proprietors and New York city involving the right of the city to improve the water front.'
Lansing v. Smith (8 Cow. 146) involves no taking. The principle is the same as that enunciated by this court in Matter of Board of Supervisors of Ulster County (215 App. Div. 147).
Union Bridge Co. v. United States (204 U. S. 364) involves a controversy between the Federal government and a bridge company. It had no grant from the general government and the grant from the State provided that its erection should not obstruct the navigation of the Allegheny river.
Shively v. Bowlby (152 U. S. 1) deals with littoral or riparian titles to land which are subject to the rights granted by the Constitution of the United States and holds that a donation land claim passes no title to lands below high-water mark as against a subsequent grant by the State.
Judge Vann, in Lord v. Equitable Life Assurance Society (194 N. Y. 227), points out the difference between the right to be a corporation and the right to own property. The charter to be a corporation may be taken away, altered or repealed, but property cannot be thus taken without compensation. (Appleby v. City of New York, supra; New York Central & H. R. R. R. Co. v. Williams, 199 N. Y. 108; First Construction Co. v. State of New York, 221 id. 295; Waterford El. L., H. & P. Co. v. State of New York, 208 App. Div. 273; affd., 239 N. Y. 629.) (See cases cited under Const, art. 8, § 1, McÉnney’s Laws and Constitution.)
Now let us consider the provision of section 4 of chapter 90 of the Laws of 1826. It read's: “Provided always, that nothing in this act contained shall be so construed as to * * * impair or injure the rights and privileges of the people of this State
*355If the effect of this language be to permit the State to take back what it had already granted then the provision is repugnant to the grant. (Sutherland Stat. Const. § 221; 1 Kent Comm. 463.) Of such a reservation Chief Judge Huger wrote: “An express reservation by the Legislature of power to take away or destroy property lawfully acquired or created would necessarily violate the fundamental law, and it is equally clear that any legislation which authorizes such a result to be accomplished indirectly would be equally ineffectual and void.” (People v. O’Brien, supra, 51.)
Moreover the act itself provides that it must be construed benignly and favorably for every beneficial purpose. A construction which takes property from the company incorporated by the act without compensation cannot be described as “ benign.” A benign construction would be one which protected the property of the corporation accepted and used on the strength of the grant.
The next contention of the State is that the claimant’s predecessor has forfeited by nonuser its special franchise to build a dam at the old canal aqueduct. I do not think that point needs any discussion. It is clear that the power to declare a forfeiture does not lie in the Court of Claims. (Thompson v. N. Y. & Harlem R. R. Co., 3 Sandf. Ch. 625, 652; Matter of New York Elevated R. R. Co., 70 N. Y. 338; Matter of Brooklyn E. R. R. Co., 125 id. 440; Parker v. Elmira, C. & N. R. R. Co., 165 id. 274; People v. Broadway R. R. Co., 126 id. 29; First Construction Co. v. State of New York, 221 id. 321; New York Electric Lines Co. v. Empire City Subway Co., 235 U. S. 179.)
Neither is the contention that the claimant has abandoned its said special franchise sound. The Court of Claims refused to find abandonment as a fact upon the request of the respondent. The court had before it conclusive evidence that the Cohoes Company needed extra waters and power in its business. It was provident in insuring the right to increase its power capacity in the future as it needed it. That it refrained from expending the money necessary to use such special franchise, the destruction of which continued to be threatened by the State from the early nineties, should be held to work for the credit and good faith of the claimant and not as a basis for the destruction of its property.
According to the State’s contention there was an abandonment by the claimant of its special franchise granted by the act of 1884. There could be no abandonment, for in the State’s contention there was no admission that such franchise to build a dam there was granted nor that it was accepted nor that anything was done under it. That which the claimant never had it could not abandon. But whether the argument of the State be for forfeiture or abandon*356ment it is based upon the same reasons. Abandonment constitutes but a reason for forfeiture. (First Construction Co. v. State of New York, supra; People v. Albany & Vermont R. R. Co., 24 N. Y. 261.) A situation then exists that if claimant had a special franchise at the time it filed its claim it was still in the ownership of it.
The only effect of the claims of forfeiture and abandonment are as trenchantly said by Chief Judge His cock that such claim might “be an element to be considered in fixing its market value in these proceedings.” (First Construction Co. v. State of New York, supra, 321.)
The Waterford Case (supra), it seems to me, controls our decision in the case at bar. The facts are quite similar. Since that case has been affirmed by the Court of Appeals we should yield to its authority.
The judgment of the Court of Claims should be reversed and matter remitted to make findings of damages for injury to claimant’s pond behind dam with crest of 154.2 and for destruction of special franchise to build above the Crescent canal aqueduct a dam with crest at 168.
Judgment affirmed, with costs.