The issue in each of these three proceedings has narrowed down to the question of the power of the commissioners of taxes of the city of Hew York to assess certain tangible property of the relator situated in or under public waters. Both the relator and respondents rely upon subdivision 3 of section 2 of the Tax Law (Laws of 1896, chap. 908, as amended by Laws of 1899, chap. 712). Each gives it a different interpretation. That subdivision defines the terms “ lands,” “ real estate ” and “ real property ” as including besides the tangible property enumerated “the value of all franchises, rights, authority or permission to construct, maintain or operate in, under, above, upon or through any streets, highways or public places, mains, pipes,” etc. All of these intangible rights it classifies for the purposes of taxation under the one head “ special franchises.” It then continues: “A special franchise shall be deemed to include the value of tb® tangible property of a person * * * or corporation situated in, upon, under or above any street, highway, public place or public waters in connection with the special franchise. The tangible property so included shall be taxed as a part of the special franchise.” Section 47 of the Tax Law provides as follows: “ Tangible property subject to a special franchise tax situated in, upon, under or above any street, highway, public place or public waters, as described in subdivision 3 of section 2, shall not be taxable, except upon the assessment made as herein provided by the State board of tax commissioners.” It is difficult at a glance to harmonize all of the provisions of subdivision 3. The term “ real property,” for the purposes of taxation, seems to be limited to *251such intangible rights or franchises as relate to public streets or highways, and to exclude by inference such as relate to public waters. It may be that the omission to include the right to construct mains and wires under public waters as special franchises was an inadvertent one, but it is immaterial for the purposes of the present application. Whatever doubts there may be as to the classification of special franchises to operate mains, etc., under public waters as real property, the statute clearly includes under the term “ special franchise” such tangible property under public waters as is used in connection with the special franchise. The distinction inferred in the clause “ in connection with the special franchise ” clearly covers the case of the relator. It has brought itself within the provisions of the exception, if it be an exception, at all, namely, it sets forth that the only property of the kind described in the assessments which it possessed was such as was situated in, upon, under or above streets, highways and public places of the borough of Brooklyn, and included in the special franchises upon which it was assessed by the State Board of Tax Commissioners. In other words, it was tangible property situated in public waters as a part or continuation of its system in the public streets and operated by it under its special franchise and in connection therewith. As there is no suggestion that the property under water was the subject of a separate and distinct franchise no such inference can be drawn. It was tangible property within the meaning of subdivision 3, and under section 41 of the Tax Law assessable and taxable only by the State Board of Tax Commissioners. The assessments by the respondents should be vacated.
Assessments vacated.