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consisting of quarter annual payments of $750, amounting altogether to over $75,000. The payments were made upon the representation that plaintiff was using in the operation of the ferry the southwesterly half of the slip owned by defendant. Neither plaintiff nor defendant learned the facts in relation to said lease and claim until about February, 1916, after there had been a change of officers and in the executive management of plaintiff, and the new officers had requested from defendant a statement as to its right to receive and plaintiff's obligation to pay said rent. The defendant thereupon claimed that it was the owner of the said southwesterly half of the slip, landing, or approach to the ferry at or about Hamilton avenue, in connection with which said rights and privileges had been granted by defendant.

Plaintiff shortly thereafter, upon an investigation, learned for the first time that the property which had been the subject of said lease had always been since November, 1890, owned solely by plaintiff, and that defendant did not own it or have any interest in it, and the lease and claim for rent had been made under mutual mistake as to such ownership. Plaintiff also learned at that time that on or about May 4, 1881, while the predecessor was in possession of and using the ferry, and while the management of the plaintiff and defendant was under the control of the said director and executive officer, the lease referred to by defendant was made. It purported to lease to the predecessor the privilege to use and occupy the southwesterly half of the slip, lying between the center line of Hamilton avenue and the northeasterly side or face of the bulkhead and pier on defendant's property, from the bulkhead across Hamilton avenue to the harbor commissioner's line, together with the northeasterly side or face of the bulkhead and pier, for the purpose of securing erections, racks, and bridges. The southwesterly half of the slip consisted, at the time of the making of the lease and ever since, except as to a portion thereof that had been filled in and occupied as a public street, of open and navigable waters of the East River. The lands under the water in the slip were owned by the state, and on or about February 8, 1886, were granted to the predecessor.

The lease expired by its terms on May 1, 1886, and was never renewed or extended by any writing. The defendant never did give possession of the southwesterly half of the slip to plaintiff or its predecessor, since it was not the owner, and the lease was made under the mutual mistake to which reference has already been made. The complaint further alleges that the plaintiff did not learn of the mistake, nor of defendant's having no title, until March, 1916.

The payments made to defendant were made inadvertently and without any obligation by plaintiff to make the same. They were made without consideration. On April 26, 1916, plaintiff demanded from defendant repayment of the moneys so paid but defendant refused to pay. Between May 1, 1881, and February 1, 1916, a large part of the space mentioned in the lease lying between the bulkhead and bulkhead line was filled in, and is now part of the public streets, and out of the possession of plaintiff. The right or privilege of using the 'side or face of defendant's bulkhead and pier was, prior to February

1, 1916, abandoned and given up, and any ferry rack or bridge theretofore secured to any bulkhead or pier of defendant was taken down and removed, and placed upon plaintiff's own land.

The defendant has brought three actions in the Municipal Court against the plaintiff upon the lease of 1881, alleging that plaintiff upon the purchase of the property became liable as tenant. Demand is made therein for $750 quarterly rent said to be due for the use of the southwesterly half of the slip. The three actions cover a period from February 1, 1916, to October 31, 1916, and it is claimed therein that plaintiff is a tenant, and must remain one, paying defendant rent, until it makes a legal surrender of the property. The plaintiff is required to operate the ferry for nearly two years more under the franchise granted by the city of New York, and the said half of the slip is needed by it for that purpose. The plaintiff then alleges it has no adequate remedy at law.

Judgment is demanded that the lease and any alleged renewals thereof be adjudged void, and that defendant has no right, title, or interest, or claim of any kind, in the southwesterly half of the said ferry slip, or the waters thereof, or the lands under the waters thereof; that defendant be enjoined from attempting to in any way enforce the lease or collect any moneys thereunder, or interfere with plaintiff's use of the slip, or any of the fixtures, racks, and appurtenances therein, in any way. It is also demanded that defendant pay the sum of $20,000, with interest from April 26, 1916. Plaintiff finally asks, if it be found it is not entitled to the foregoing relief, that any rent due from February 1, 1916, by reason of the lease be apportioned, so that in any event the plaintiff shall not be required to pay rent for any more than so much of any privilege granted by defendant as is now in actual possession of plaintiff, and for such further relief as may to the court seem just.

[2, 3] Since a copy of the lease is not made part of the complaint, we must have recourse to the latter to ascertain what was leased. We think the property leased was so much of defendant's pier and bulkhead as was necessary to secure the plaintiff's ferry rack and bridge. A proper construction of the lease as described in the complaint would not warrant the inference that it included the right to use and occupy the waters of the slip as a separate element of the demise. Such use and occupation was simply an incident to the use of defendant's property. This view has the advantage of being consistent with the legal rights of the parties in the property owned or used by them as we understand such rights, and the conclusion reached as to the true meaning of the lease finds support accordingly. The plaintiff, under its franchise from the city, had authority to maintain its ferry rack. The franchise requires the plaintiff to operate the ferry for nearly two more years. The ferry had been conducted by the predecessor for many years prior to the making of the lease of 1881, and it is to be assumed that the ferry rack and bridge were used during all that time for that purpose.

Under the Montgomerie Charter the city was given the sole, full, power and authority to establish and direct ferries around Manhat

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tan Island for the carrying and transporting of people, horses, cattle, goods, and chattels from the said island to Nassau Island and back to Manhattan Island, and a grant to the city of all ferries on both sides of the East River was made by the charter. The city thus acquired title to the ferries in its private and not governmental capacity. It was under the duty to maintain the ferries as a part of the highways and of which they are a continuation. Matter of Wheeler, 62 Misc. Rep. 37, 115 N. Y. Supp. 605, affirmed 137 App. Div. 894, 121 N. Y. Supp. 1143; Benson v. Mayor, 10 Barb. 223.

The Hamilton avenue ferry was established in the year 1848 (Benson v. Mayor, supra), and therefore before the requirement as to spaces of 100 feet between piers in the act of 1857. Laws of 1857, C. 763. Even assuming that the defendant received a grant as early as the year 1840, when it was incorporated, it cannot be said that it acquired thereby such a right to use the waters of the adjoining slip as would preclude the erection of the ferry rack necessary to the operation of the ferry. It is not claimed by defendant that it acquired such right by the express terms of the grant, but it relies upon one said to be implied by law in relation to the access to its pier and bulkhead in the enjoyment of the use thereof.

It has been held that public grants to individuals, under which rights are claimed in impairment of public interests, are to be construed strictly against the grantee; that, although he can exclude all individuals from the permanent occupation of lands under tidewater held by him under such grant, he cannot exclude the state, which still has the right to regulate the use of the premises in the interest of the public and for the protection of commerce and navigation, People v. N. Y. & S. I. Ferry Co., 68 N. Y. 71; Sage v. Mayor, 154 N. Y. 61, 47 N. E. 1096, 38 L. R. A. 606, 61 Am. St. Rep. 592. Even the right of a riparian owner to have access to his upland and to build structures on the land under water for that purpose is subject to appropriation by the general government for some superior, lawful, and public use. Town of Brookhaven v. Smith, 188 N. Y. 74, 80 N. E. 665, 9 L. R. A. (N. S.) 326, 11 Ann. Cas. 1. The only ground upon which defendant could have any right in lateral waters adjacent to its pier, and not in front of any land owned by it, must be based upon the right of the public in the public waters, and that right was made subject to the public use for ferry purposes when the Hamilton avenue ferry was established.

In Jordan v. Metropolitan, 65 How. Prac. 255, the court granted an injunction restraining defendants from interfering with the construction of a ferry house and improvement at the foot of FortySecond street, New York City. The court referred to the claim of the defendants that the construction would abridge the advantageous use of their property south of the street line, and said that, if that should prove to be the fact, as long as the improvements were confined within the limits of the street, defendant could not for that reason interfere to prevent the improvements and changes being made; that, if the use of defendant's property would be so abridged, it would result from the fact that its northerly pier was constructed too near

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the southerly line of Forty-Second street; that it could not, by locating it there in that manner, restrict or limit the right of the city to provide for the improvement of the street and of the ferry at the foot of it, as that had been allowed for the purpose of meeting the exigencies and convenience of the traveling public.

In Stevens v. Rhinelander, 5 Rob. 285, plaintiff sought to restrain defendants from building a pier within 100 feet of land owned by them, and upon which they had erected structures at the foot of Barclay street, New York City, for ferry purposes. The court held that there was no violation of chapter 763, Laws of 1857, as the bridge and ferry rack, built solely for ferry purposes, did not constitute a pier within the meaning of the act.

From what has already been said, it must be apparent that the plaintiff needed no lease or license from the defendant to allow it to use the lateral waters of the said slip in the operation of the ferry, or to maintain the rack and bridge for that purpose. This renders improbable an intention of the parties to include the easement in the waters in the lease, since it may be assumed that they could not have been unaware of plaintiff's obvious and legal rights.

A consideration of the defendant's argument on this appeal leads to a like result, for it is not shown that defendant had anything else to lease, except so much of its pier and bulkhead as was used by plaintiff. The defendant says that it claims that there was a lease of an easement which the defendant had in the slip, to wit, the right to bring vessels across the slip and berth them alongside the defendant's pier, as well as the right to use the side of the pier and the bulkhead; that it was an easement, the exercise of which by the defendant would be fatal to the maintenance of the ferry, for, if the defendant exercised its right to moor a vessel alongside of its pier, it would be impossible for plaintiff to operate the ferry, as one vessel might lie alongside the pier for a week.

The defendant was incorporated by chapter 215 of the Laws of 1840, for the purpose of erecting and maintaining bulkheads, piers, basins, and other structures for commercial uses, in the Sixth ward of the city of Brooklyn, and within the lines established by law for the erection of docks and bulkheads, and to receive reasonable dockage and wharfage from all persons using the same. The act further provided that nothing therein should be taken to destroy, abridge, or in any manner impair the rights of the city of New York in respect to the land between the lines of high and low water along the Brooklyn shore of the East River, nor should the act authorize any dock, wharf, pier, or basin to be erected upon or in front of any of the lands belonging to the city of New York without the permission of the common council.

The defendants rely upon the case of Murray v. Sharp, 1 Bosw. 539, in support of its claim that it is entitled to use of the waters adjoining its pier and bulkhead, not included in its grant, and to collect wharfage thereupon. The plaintiff in the Murray Case in 1797 was the owner of upland at the upper corner of Wall street and the East River, and the city, which had title to all the land under water around Man

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hattan Island out 400 feet in the East River and to the wharfage therefrom, granted him a water lot 73 feet wide in front of his lands. Murray agreed to construct Scuth street along the river 70 feet wide, and also a wharf in Wall street 25 feet wide, fronting the basin. The whole bulkhead to be built by Murray was 98 feet in extent, and the city covenanted that, upon Murray so building, he would be forever entitled to wharfage for the entire 98 feet. The pier and bulkhead were built by Murray as agreed. The above facts are not fully set forth in the report of the case, but appear in Mayor v. Scott, 1 Caines, 543, where a successor in title of Murray sued for wharfage. The defendants in the Murray Case obtained a lease from the city of the slip at the foot of Wall street, adjoining the pier erected by Murray, for the purpose of running a ferry, which would entirely destroy the wharfage of the pier erected by him pursuant to his agreement with the city. It was held that, under the covenant by the city giving him the wharfage, the plaintiff was entitled to recover. The decision in that case, therefore, clearly has no application to the case at bar.

In the Matter of Public Service Commission (Montague Street) 224 N. Y. 211, 120 N. E.. 147, also cited by defendants, the rapid transit commission instituted a proceeding to acquire land for the purpose of constructing a tunnel under the ferry slip at Montague street and between two piers owned by the New York Dock Company, appellant. The tunnel was to be 45 feet below mean water at the pier line. The owners of the upland were awarded compensation for the land and land under water out to the pier head, but compensation was refused the dock company on the ground it had not proved title to any of the property affected. Upon appeal the Court of Appeals said no permanent obstruction could interfere with appellant's use of the docks for the mooring of its vessels and the collection of wharfage. It further said that, if navigation along side of appellant's piers had been interfered with, it might be entitled to compensation, but that the court was.not yet called upon to decide whether such rights could be taken by the city, or whether, if taken, and the navigation alongside the piers closed, the dock company would be entitled to damages.

Langdon v. Mayor, 93 N. Y. 129, is also cited as holding that the grant of wharfage at a wharf adjoining land under water belonging to the grantor carries with it, as a necessary incident a right of way, or access for vessels, over the grantor's adjacent land. In that case, however, the plaintiff was deprived of all access and the grant thus nullified. It could not be cut off from access to the front of its pier. Williams v. Mayor, 105 N. Y. 419-429, 11 N. E. 829.

None of the cases cited by defendants is authority for its claim of a right to use the waters of the slip in relation to its pier and bulkhead. On the other hand, it was held in Jenks v. Miller, 14 App. Div. 474, 43 N. Y. Supp. 927 (Cullen, J.), that while the owners of adjacent upland had the right of access to the river, and also the right to construct a proper pier therein, they had no easement or interest in the lands under water of the adjacent proprietors. It was also so held in Consumers' Coal & Ice Co. v. City, 181 App. Div. 388, 169 N. Y. Supp. 92, and New York Dock Co. v. Flinn-O'Rourke Co., 182