We may all agree that “ petitioner, by availing itself of the privileges granted in chapters 596 and 597 of the Laws of 1918, assumed the reciprocal burdens, among them being that of paying an equitable rental for the water diverted in excess of 15,100 cubic feet per second.” The terms of said statutes then became a compact between the State and the petitioner and its predecessors in title. Unquestionably the State at that time was vested with rights either proprietary or in sovereignty in the waters of the Niagara river. The conflicting rights of the State and the petitioner and its predecessors were disputable. The grants themselves, the voluminous record here and the able briefs of eminent counsel are sufficient evidence of the controversial nature of the rights involved. Such controversy in and of itself furnished sufficient consideration to support the recognition and acknowledgment by petitioner of the fact that the State possessed rights therein, and affords adequate foundation for the implied promise on the part of the petitioner to pay an equitable rental for the diversion specified.
There is a presumption that the public officials have properly discharged their duties herein and that the order under review is valid and proper. In attacking such order the burden is, therefore, upon the petitioner to establish and point out any invalidity therein.
• By subdivision 13 of section 614 of the Conservation Law the Water Power and Control Commission is given power to fix and determine the amount of an equitable rental; pursuant to the reservation made by the acts permitting the incorporation of petitioner, “ and which shall be fixed in like manner as if the application was made for a license under the provisions of this article before the water was used.” Subdivision 2 of section 616 of the Conservation Law provides that such a license “ shall require the payment by the licensee of an annual charge measured by a fair rental value thereof; in other cases, except where the State has no proprietary interest, an equitable annual charge may be made, in determining which the Commission shall give consideration to the cost of producing power by others in competition with the licensee * * *.”
¡_ We may abandon at once any further investigation of the value *225of such rental measured by the rights of the State under its proprietary interests, because the petitioner by its brief asserts that the State has no such proprietary interest and has failed to meet the burden cast upon it of showing that the rental fixed is improper and excessive measured by such proprietary interest.
We are thus to consider the proposition whether the rental is too high, giving consideration to the cost of producing power by others in competition with petitioner.
It is argued by my associates that rent is dependent upon ownership, not only under this statute but by common law; that rent is the periodic return for the privilege or use and that the usual rule is that the rent of anything shall be somewhat in proportion to its cost or value. Even if the rental involved the question of ownership, the extent of that proprietary interest would not be controlling in determining the rental. The statute contemplates a determination of what the use of the water diverted is worth to the petitioner, not what it is worth to the State. In determining the value thereof to the petitioner, consideration is to be given to the cost of producing power by others in competition with the licensee. I apprehend competition means actual competition taking into account the distances electrical energy may be transmitted and all other factors involved. It appears in the record and it is common knowledge that such competition is not confined to producers and transmitters of power within the area of the city of Niagara Falls, but that it extends over and includes vast areas of the State. We are not now required to state the formula by which the equitable rental value is to be ascertained. Our task is to determine whether the rate fixed by the Commission is excessive.
The petitioner has not met the burden of showing that the rate exceeds the value to it of the diversion; in fact one of the arguments advanced in support of petitioner’s contention is that by virtue of the advantages in location it is enabled to produce and transmit at a very low rate.
The petitioner asserts that error was committed in the refusal to permit experts to answer certain hypothetical questions. The exclusion of this preferred testimony was not so prejudicial as to justify a reversal. If it be assumed that the opinion of experts would have been helpful, such opinions would not have constituted facts; they were attempted aids in interpreting facts. Furthermore, the Commission was dealing with a subject concerning which they may be assumed to have special knowledge and information, and the ability to interpret the facts before it. The question to be determined did not involve the opinion of experts, but it involved facts *226as to the cost of production, the distance the power is and may be transmitted, and the extent to which petitioner must meet competition.
The determination should be confirmed, with costs.
McNamee, J., concurs.
Determination annulled and matter remitted to the Water Power and Control Commission.