The action has been brought to determine the extent of plaintiff’s right to the use of so-called surplus canal waters, delivered at the head of the Lockport locks of the Erie Canal, at Lockport, N. Y., and to restrain the Superintendent of Public Works of the State from interfering with the use thereof by plaintiff and its sublessees.
The claim is made under a lease from the State, made January 25, 1826, to predecessors of plaintiff. The State has been included on the theory that conflicting rights in real estate are involved. No objection is made on that ground.
The other defendants are sublessees.
The canal was finished in 1825. The level from Lake Erie ' to Lockport was maintained by water brought in from Lake Erie. *383At Lockport there was a drop of about sixty feet to the next level, about sixty miles long, called the long level, extending to Rochester. Locks were constructed at the drop for the ascent and descent of boats. All the water delivered at the head of the locks was not required for lockage. It could not be discharged through the locks without damage. Some was lost by leakage. It was estimated that there would be an excess above the requirements for lockage and the loss by leakage and it was determined that this excess could be spared for use, between the head and the foot of the locks, by by-passing it around the locks, so as to protect the locks, and by returning it to the canal at the foot of the locks. It was thought that industries would be stimulated thereby, with the result that the State would receive increased tolls.
Accordingly, on April 20, 1825, the Legislature passed chapter 275 of the Laws of 1825, turning the matter over to the Canal Commissioners of the State, with certain powers. Thereupon, the Commissioners made the lease and the question is whether it was limited only to the excess waters as of the time when it was made or included all of the subsequent increases resulting from subsequent enlargements of the canal.
It is a question of construction and interpretation.
Plaintiff claims that the terms are ambiguous, but that practical construction, based upon acts, resolves the ambiguity in its favor.
The State claims that the terms are not ambiguous.
Without ambiguity, the doctrine of practical construction is not applicable. (City of New York v. N. Y. City R. Co., 193 N. Y. 543.) But, if applicable, only acts of officials within the scope of their authority may be considered.
In determining the question, it must be remembered that the act, under which the lease was made, was the source and the limit of the authority of the Commissioners, and that the act and the lease must be considered together.
The act provided that " Whenever, in the opinion of the Canal Commissioners, any water may be spared from either the Erie or Champlain Canal, or any canal or work which has been or shall be constructed by the authority of the State, without injury to the navigation or safety thereof, in such case the Canal Commissioners are authorised to lease the said waters to such person or persons as may be willing to give the highest annual rent therefor, reserving, however, in the lease to be given, the right to- limit, control or wholly resume the said waters, and all the rights granted by any such lease, whenever, in the opinion of said Commissioners, or of the Legislature, the safety of such canal or works, or the necessary supply of water for the navigation of any canal which now is or *384hereafter may be constructed by the authority of the State, render such limitation, control or resumption necessary. * *
It contained another provision for the payment of the rent annually and one that, where the waters were resumed, no damage or compensation should be paid or allowed to any one for any improvements or erections made in consequence of the lease.
Pursuant thereto, the Commissioners, on June 13,1825, advertised for bids “ for the disposal of the surplus waters which may be spared from the canal at the waste weirs connected with the public works at Lockport.”
Bids were received on July 25, 1825, and the highest one was from Richard Kennedy for $200 annual rent.
Kennedy then sold one-half of his interest to Junius H. Hatch and a lease was given to them on January 25, 1826.
By this the Commissioners granted and leased to them, their heirs and assigns, “ all the surplus waters, which, without injury to navigation, or security of the canal, may be spared from the canal at the head of the locks, in the village of Lockport, to be taken and drawn from the canal at such place and in such manner and to be discharged into the lower level at such place and in such manner as the said Canal Commissioners shall from time to time deem most advisable for the security of the canal and for the convenience of the navigation thereof,” and they reserved to themselves and to the Legislature “ the right to limit, control or wholly resume the said waters, and all the rights granted by this lease, whenever in the opinion of the said Canal Commissioners, or of the Legislature, the safety of the canal or its appendages, or the necessary supply of water for the navigation of the canal shall render such limitation, control or resumption necessary.” And it provided for the yearly rent of $200. It did not provide for limitation, control or resumption without the payment of damages or compensation as provided in the act. Plaintiff now owns the lease.
The water was not in the canal when the act was passed, but was in when the lease was made.
The maintenance of the long level required a constant flow of water. It was furnished through a by-pass from the head around the locks to the foot and was the water not needed for lock-age and not lost by leakage. It was brought from Lake Erie.
The lease did not specify the amount of water which was granted, but the prism was forty feet wide on the water surface, twenty-eight feet wide at the bottom and four feet deep.
It was stipulated that the water required at the head of the locks, at the time the canal was opened, to maintain the upper level, was 125.17 c. f. s., leaving 109.11 c. f. s. for the long level, after deducting 16.06 c. f. s. for lockage and leakage.
*385Work of enlarging the canal was commenced in 1838. The Legislature declared it to be completed in 1862, but it was actually completed in 1874.
It was stipulated that the amount required after this enlargement was 473.14 c. f. s., leaving 423.14 c. f. s. for the long level, after deducting 50 c. f. s. for lockage and leakage.
Plaintiff constructed a tunnel on the north side about 1859, while this work of enlargement was in progress. The purpose was to by-pass an increased amount of water to the long level.
The Barge Canal was built about 1905, and it was stipulated that the amount required at the head to maintain the long level at its highest efficiency was 1,200 c. f. s., less 250 c. f. s. required for lockage and leakage, leaving 950 c. f. s. for the level.
An increased amount of water was delivered at the head with each enlargement and plaintiff and its lessees and grantees used it until November 25, 1908, when the then Commissioner of Public Works served notice of cancellation of the lease. The rent was paid to January 1, 1909. In 1913 the Canal Board adopted a resolution terminating the lease, whereupon plaintiff commenced a proceeding by mandamus. In that proceeding the court found, among other things, that the surplus water furnished under the lease, in 1913, was substantially as furnished for many years before and at all times since January 1, 1907, and that the changes in the canal at Lockport were not such as to preclude it in the same manner in the future.
The State appealed from the decree which was made, but the appeal was withdrawn upon the stipulation that the decree was to be considered as an adjudication only that the 1826 lease was a valid lease and that all other questions, particularly the one as to the amount of water which was granted under the lease, were to be left open and undetermined.
That is the question to be determined now.
The claim is based upon the lease and not upon prescription.
The act authorized the Commissioners to lease, whenever in their opinion “ any water may be spared.” The notice was for the disposal “ of the surplus waters which may be spared.” And the lease was of “ all the surplus waters which * * * may be spared.”
The duration of the lease and the quantity of water leased were not specified. Upon these facts is based the claim that all surplus waters for all time, however created, were covered. But the lease could be terminated without the payment of damages or compensation whenever, in the opinion of the Legislature or the Canal *386Commissioners, navigation and the safety of the canal required. And the amount of water as of the time when the lease was made could be closely estimated.
Moreover, the rental was to be only $200 per year, and, if that amount was reasonable for that time, it would appear that subsequent increases were to be gratuitous, unless the Legislature and the Commissioners had in mind only the desire to stimulate industry in that section and were wasteful of public property, a conclusion which should not be adopted lightly. It would seem, therefore, that the lease was to be perpetual only as to the water which could be spared, as of that time, subject to the right to terminate in accordance with its terms.
That conclusion is confirmed by the provisions of the act and of the lease.
“ Whenever ” in the opinion of the Canal Commissioners any water could be spared from either the Erie or Champlain Canals or any canal or work, constructed or to be constructed, without injury to navigation or safety, “ in such case ” the Commissioners were authorized to lease “ the said waters,” with the right to limit, control or wholly resume, as stated. “ Whenever ” means “ at whatever time.” Thus, it would seem that more than one time and more than one lease were contemplated. Next, a determination that water could be spared was required in advance of any lease, and, if favorable, alease of “ the said waters ” could be made, namely, the water which, under the determination, could be spared. Clearly, that referred to the water as of the time of the determination.
While the act and the lease indicate that some increase at the head was anticipated, the subsequent increases from the subsequent enlargements and the later change to the greatly enlarged Barge Canal, along a different route, except at this place, could not have been, unless it be assumed that the interests of the State could be and were ignored.
It seems clear that there was no intention to cover future increases, especially by enlargements, and that a further determination was contemplated after each increase, to be followed by a further lease if the determination was that additional waters could be spared.
The joint resolution of the Legislature in 1831, before any increase or enlargement, confirms this view. That was against further leases of canal waters, except the surplus waters at Black Rock and the Troy dam.
And the reports of legislative committees in 1833 and 1870, and of the Canal Board in 1834 and 1839, also confirm it. These were to the effect that further leasing of surplus waters was inexpedient and recommended revocable licenses for the future.
*387In its brief, the State admits that some leases were made after the passage of the act, but claims that those relating to the surplus waters of Black Rock and the Troy Dam were excepted from the 1831 resolution, and that those at West Troy Arsenal and the Glens Falls feeder and the so-called Rhoderick Price lease were authorized either by joint resolutions or by special acts. As to this the record is not clear.
And chapter 595 of the Laws of 1897, subsequently re-enacted in section 111 of the Canal Law (Laws of 1909, chap. 13), is a confirmation.
Thereby the Legislature authorized the Superintendent of Public Works, with the approval of the Canal Board, “ to make a lease of any of the surplus waters of the canals of this State arising from enlargement or improvements of the same, actually made, or in progress, which waters shall not be necessary for the navigation or operation of such canals, or may be withdrawn for use for power and returned without detriment thereto, and which have not heretofore been leased.”
Significance has been attached to the words “ which have not heretofore been leased,” but the real significance is in the fact that leases were authorized of surplus waters arising from enlargement or improvements of the canals and not theretofore leased, leaving the inference that it was deemed that such waters had not passed under the existing leases.
Plaintiff relies upon chapter 42 of the Laws of 1858 as a legislative declaration of its rights to increases.
It is true that the work of the first enlargement had been commenced in 1838 and was going on when the act was passed. And, according to the stipulation which was made, an increased volume of water had been coming to the head of the locks since 1842.
By the act, plaintiff’s predecessor was “ authorized and empowered to purchase and hold, in fee simple, any real estate contiguous to the mill race belonging to said company, and between said race or any mill race which said company may hereafter construct and the Erie Canal, provided said company shall deem such real estate convenient and suitable for manufacturing purposes, and it shall be lawful for said company to dispose of any of its real estate and rights of water to other corporations or individuals, for manufacturing purposes, by grant or lease,” with the same force and effect as if made by an individual owner seized in fee simple.
It also provided for a lump sum payment of the yearly rent, payable under the “ perpetual lease of the surplus waters at Lock-port,” granted by the Canal Commissioners to the lessees January 25, 1826.
*388Plaintiff calls, it a confirmatory act, but it will be observed that the construction and extent of the grant are not indicated.
And the right to dispose of “ rights of water ” related only to the waters which passed, and the lease was perpetual only as to those waters, until it was terminated as therein provided.
The Barge Canal was completed about 1905. Thereby, waters in largely increased amounts were delivered at the head of the locks and were carried around by the tunnel on the north and the raceway on the south and were used by plaintiff and its lessees, without serious objection until a little later. In addition, the State built a fore-bay on its lands on the south side, at the head of the locks, connected by a by-pass with the canal at the foot. And a Commissioner of Public Works required plaintiff to lower the tunnel on the north, which it did at a cost of $36,000. But the gates controlling the water into both raceway and tunnel were owned and built by the State within the canal lines and the water could be passed around on the State’s lands.
And section 16 of the Barge Canal Act (Laws of 1903, chap. 147), as added by chapter 494 of the Laws of 1907, provides that “ the waters, surplus or otherwise, created or impounded as a result of the improvement of the Erie, Champlain and Oswego canals, * * * shall not be leased, sold or otherwise disposed of,” until the improvement of said canals, as contemplated, shall have been finally completed, “nor thereafter until authorized by statute setting forth specific terms, conditions and restrictions governing the same.”
Plaintiff claims that its rights under its lease may not be cut down until the lease is terminated and the State resumes as provided therein.
It is apparent that State officials were remiss, but it appears that the lease was only of the excess waters as of the time when it was made and that the use of subsequent increases was only by inaction on their part or by an implied permission, which was not effectual to. confer a right.
I think that the judgment should be affirmed.
Judgment reversed on the law and facts, and judgment rendered determining that plaintiff is entitled, under its lease, to use all the surplus waters of the canal at Lockport, subject only to the rights reserved in the lease, and granting an injunction restraining the Superintendent of Public Works from shutting off the surplus waters of the canal from the conduits or raceways leading to the plants of the plaintiff and its lessees.
This court reverses the following findings of fact: Nos. 26 (after the word “ but”), 60, 61, 62, 65, 79, the words “ without any written *389authority therefor,” 81, 82, 83; and disapproves the conclusions of law in conflict with the opinion of this court, VIII to XLIV, inclusive.
This court makes findings of fact and conclusions of law in accordance with its opinion. Findings of fact and conclusions of law may be prepared, and if not agreed upon they may be settled before Van Kirk, P. J.