Harden, J.:
It must be assumed that the lands upon which the plaintiff constructed dry-docks belonged to, and were the lands of the State, held for the purposes of the operation of the canals. (See permit to plaintiff, in resolution of August 30,1865.) Such is the express declaration in the lease of 1871$ executed- between the parties. That lease declares the dock leased then to be situated upon the lands of the State.
This language is used, viz.: “ Being the same docks built by said A. O. Mattoon, on lands belonging to the State of New York for [78]*78canal purposes, under and by virtue of a grant from the board of Canal Commissioners of the State of New York to said Mattoon.” This stipulation is an admission conclusive upon the parties to this action, being found in the lease between them.
The same admission, in effect, is found in the resolution of August 30, 1865, passed by the board of Canal Commissioners. That resolution gave the plaintiff the privilege of constructing a dry-dock on the west side of lock No. 1, Oswego canal, in the city of Oswego. The resolution provided'that the dock should be constructed under the directions of the Canal Commissioner, in charge of an engineer designated by him. That resolution expressly reserved to the Canal Commissioners “the power to revoke and annul the permission, either wholly or in part, to close such dock permanently or temporarily, for any cause whatever;” and it declared that an acceptance of the privilege granted to the plaintiff “ shall be deemed a covenant on the part of said Mattoon or his successors for the performance of all conditions herein contained.”
Under this language, it is quite clear that the plaintiff cannot question the power of the Canal Commissioners “ to revoke and annul the permission” wholly, unless some restraint has been placed upon the Commissioners by statute. The whole policy of the State in respect to the lands and waters of its canals has been to keep the title and use and right of use thereof exclusively in the State.
That policy has been evidenced by the action of the people, the Legislature, the State officers, and the courts. (See Constitution, section 6, of article 7; Burbank v. Fay, 5 Lans., 397.) Nor do we find anything in the act of 1865; chapter 727, or of 1866, chapter 657, which in terms or in spirit interferes with the right of the commissioners to exercise the power of protecting and occupying the property of the State acquired for the use of the Oswego canal. The statute of 1866, chapter 657, in terms authorizes and requires the commissioners to remove or cause to be removed certain specified obstructions and encroachments thereon, whether in the shape of buildings, fences or other structures, except dry-docks authorized by the Canal Commissioners or manufacturing mills or warehouses doing business upon the canal; “that said [79]*79lands may be kept in tbe possession of tbe State for tbe purposes of canal navigation.”
Jf would be difficult to see how a building erected by an express permission upon lands by the party to whom they “ belong ” could be held to be an " moroadlvniemb'” in the sense in which that term is used in the act of 1866. We conclude, therefore, that the Commissioners, in virtue of the reservation in the resolution or permit of August 30, 1865, had the power to revoke the privilege given to the plaintiff; and secondly, that they were not “ required ” by the act of 1866 to cause the dry-dock to be removed in order to accomplish the declared object of the act of 1866, to wit: “ so that said lands may be kept in the possession of the State for the purposes of canal navigation.”
Having reached the conclusion that the board of Canal Commissioners had the power to revoke and annul the permit which was given to the plaintiff, we are not at liberty to inquire into the motives which led them to exercise such power, and to sustain or defeat them action, as we shall conclude, upon speculation or evidence submitted in this case, that such motives were commendable or otherwise. (Burbank v. Fay, 5 Lans., Op. of Johnson, J.; S. C., affirmed, 65 N. Y., 57.)
We must, therefore, consider the case further, upon the assumption that the resolution of the board of Canal Commissioners of February 18,1876, revoked as between the State and the plaintiff the privilege of constructing dry-docks upon the lands belonging to the State.
The terms of the resolution of February 18, 1876, follow a preamble reciting the grant of the privilege of August, 1865, and also reciting the fact that the plaintiff, under the permit of August 30, 1865, constructed such dry-dock, and that it had been in use to the date of the resolution of February, 1876. That resolution declared that the grant or permit to the plaintiff to “ construct the aforesaid dry dock, in the city of Oswego, is hereby abrogated, annulled and permanently revoked.” It did not in terms affect the structure, nor in terms declare that it should no longer remain upon the lands belonging to the State. Nor did it require the plaintiff to vacate the lands upon which the dry-dock was constructed.
[80]*80The referee has found that the plaintiff constructed the dry-dock by an expenditure of $5,000 to $6,000. There is no finding that it interfered with a proper use of the canals, or that it was for the interest of the State that it should be removed; nor does the evidence in the case authorize us to draw such conclusions therefrom. But, on the contrary, the action of the Canal Commissioners in passing a resolution, May 23,1876, to the effect that the defendants have a permit to use and occupy the dry-dock “ formerly occupied by A. O. Mattoon, together with its appurtenances,” clearly indicates that the removal of the dry-dock was not needful or desirable. But it is said in behalf of the defendants, that the liability to pay rent, under the lease, to the plaintiff, closed tue moment the resolution of February 18,1876, was adopted, and notice thereof given to the defendants, and they offered to surrender up the possession of the premises.
To properly consider the argument addressed to us in behalf of the defendants in that regard, we must turn to the terms of the lease, in connection with the facts and circumstances already alluded to. We find by the lease between the parties that the defendants became the tenants of the plaintiff, for the term of five years, from the 15th day of July, 1871, and that they agreed to hire and pay for “ the two dry-docks situate on the Oswego canal, in the city and county aforesaid, opposite to and next from the lower dock, being the same docks built by said A. C. Mattoon, on lands belonging to the State of New York, for canal purposes.”
This language, doubtless, carried all the right to the use of the lands which the plaintiff had derived from the State; and it also carried the right to the use of the dry-docks, which had cost the plaintiff some $6,000 to construct, and in which, it must be assumed, he had a beneficial interest, notwithstanding the revocation of the permit to construct them upon the lands belonging to the State.
It was also stipulated in the lease between the parties that “all right, title, and interest which” they had at the date of the lease, “ or may have, or at any time claim to have, in or to said premises during the life of this lease,” were assigned to the plaintiff.
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Harden, J.:
It must be assumed that the lands upon which the plaintiff constructed dry-docks belonged to, and were the lands of the State, held for the purposes of the operation of the canals. (See permit to plaintiff, in resolution of August 30,1865.) Such is the express declaration in the lease of 1871$ executed- between the parties. That lease declares the dock leased then to be situated upon the lands of the State.
This language is used, viz.: “ Being the same docks built by said A. O. Mattoon, on lands belonging to the State of New York for [78]*78canal purposes, under and by virtue of a grant from the board of Canal Commissioners of the State of New York to said Mattoon.” This stipulation is an admission conclusive upon the parties to this action, being found in the lease between them.
The same admission, in effect, is found in the resolution of August 30, 1865, passed by the board of Canal Commissioners. That resolution gave the plaintiff the privilege of constructing a dry-dock on the west side of lock No. 1, Oswego canal, in the city of Oswego. The resolution provided'that the dock should be constructed under the directions of the Canal Commissioner, in charge of an engineer designated by him. That resolution expressly reserved to the Canal Commissioners “the power to revoke and annul the permission, either wholly or in part, to close such dock permanently or temporarily, for any cause whatever;” and it declared that an acceptance of the privilege granted to the plaintiff “ shall be deemed a covenant on the part of said Mattoon or his successors for the performance of all conditions herein contained.”
Under this language, it is quite clear that the plaintiff cannot question the power of the Canal Commissioners “ to revoke and annul the permission” wholly, unless some restraint has been placed upon the Commissioners by statute. The whole policy of the State in respect to the lands and waters of its canals has been to keep the title and use and right of use thereof exclusively in the State.
That policy has been evidenced by the action of the people, the Legislature, the State officers, and the courts. (See Constitution, section 6, of article 7; Burbank v. Fay, 5 Lans., 397.) Nor do we find anything in the act of 1865; chapter 727, or of 1866, chapter 657, which in terms or in spirit interferes with the right of the commissioners to exercise the power of protecting and occupying the property of the State acquired for the use of the Oswego canal. The statute of 1866, chapter 657, in terms authorizes and requires the commissioners to remove or cause to be removed certain specified obstructions and encroachments thereon, whether in the shape of buildings, fences or other structures, except dry-docks authorized by the Canal Commissioners or manufacturing mills or warehouses doing business upon the canal; “that said [79]*79lands may be kept in tbe possession of tbe State for tbe purposes of canal navigation.”
Jf would be difficult to see how a building erected by an express permission upon lands by the party to whom they “ belong ” could be held to be an " moroadlvniemb'” in the sense in which that term is used in the act of 1866. We conclude, therefore, that the Commissioners, in virtue of the reservation in the resolution or permit of August 30, 1865, had the power to revoke the privilege given to the plaintiff; and secondly, that they were not “ required ” by the act of 1866 to cause the dry-dock to be removed in order to accomplish the declared object of the act of 1866, to wit: “ so that said lands may be kept in the possession of the State for the purposes of canal navigation.”
Having reached the conclusion that the board of Canal Commissioners had the power to revoke and annul the permit which was given to the plaintiff, we are not at liberty to inquire into the motives which led them to exercise such power, and to sustain or defeat them action, as we shall conclude, upon speculation or evidence submitted in this case, that such motives were commendable or otherwise. (Burbank v. Fay, 5 Lans., Op. of Johnson, J.; S. C., affirmed, 65 N. Y., 57.)
We must, therefore, consider the case further, upon the assumption that the resolution of the board of Canal Commissioners of February 18,1876, revoked as between the State and the plaintiff the privilege of constructing dry-docks upon the lands belonging to the State.
The terms of the resolution of February 18, 1876, follow a preamble reciting the grant of the privilege of August, 1865, and also reciting the fact that the plaintiff, under the permit of August 30, 1865, constructed such dry-dock, and that it had been in use to the date of the resolution of February, 1876. That resolution declared that the grant or permit to the plaintiff to “ construct the aforesaid dry dock, in the city of Oswego, is hereby abrogated, annulled and permanently revoked.” It did not in terms affect the structure, nor in terms declare that it should no longer remain upon the lands belonging to the State. Nor did it require the plaintiff to vacate the lands upon which the dry-dock was constructed.
[80]*80The referee has found that the plaintiff constructed the dry-dock by an expenditure of $5,000 to $6,000. There is no finding that it interfered with a proper use of the canals, or that it was for the interest of the State that it should be removed; nor does the evidence in the case authorize us to draw such conclusions therefrom. But, on the contrary, the action of the Canal Commissioners in passing a resolution, May 23,1876, to the effect that the defendants have a permit to use and occupy the dry-dock “ formerly occupied by A. O. Mattoon, together with its appurtenances,” clearly indicates that the removal of the dry-dock was not needful or desirable. But it is said in behalf of the defendants, that the liability to pay rent, under the lease, to the plaintiff, closed tue moment the resolution of February 18,1876, was adopted, and notice thereof given to the defendants, and they offered to surrender up the possession of the premises.
To properly consider the argument addressed to us in behalf of the defendants in that regard, we must turn to the terms of the lease, in connection with the facts and circumstances already alluded to. We find by the lease between the parties that the defendants became the tenants of the plaintiff, for the term of five years, from the 15th day of July, 1871, and that they agreed to hire and pay for “ the two dry-docks situate on the Oswego canal, in the city and county aforesaid, opposite to and next from the lower dock, being the same docks built by said A. C. Mattoon, on lands belonging to the State of New York, for canal purposes.”
This language, doubtless, carried all the right to the use of the lands which the plaintiff had derived from the State; and it also carried the right to the use of the dry-docks, which had cost the plaintiff some $6,000 to construct, and in which, it must be assumed, he had a beneficial interest, notwithstanding the revocation of the permit to construct them upon the lands belonging to the State.
It was also stipulated in the lease between the parties that “all right, title, and interest which” they had at the date of the lease, “ or may have, or at any time claim to have, in or to said premises during the life of this lease,” were assigned to the plaintiff. Confessedly this language is sufficiently broad, to carry to the plaintiff any interest or title which the defendants held or acquired in [81]*81and to the premises to the plaintiff, during the “life of this lease.” Presumably the “ life of the lease ” was commensurate with the term of five years named therein — to wit: from July 15, 1871, to July 15, 1876, in the absence of any other controlling provisions of. the lease.
We turn now to see if any event had happened, which, by the terms of the lease, made an entire determination of “ the life of the lease.” It was stipulated in it, that, “ in case this grant or sale to the said Mattoon (referring to the permit from the State) shall be legally rescinded by the proper authorities of the State during the terms of this lease, the said Munroe and Judson shall pay for such time only as they occupy sand premises up to the time they shall be legally dispossessed, and this lease shall be void without recourse to either party, after such legal dispossession.” Here we find an express covenant to pay rent “ up to the time they shall be IcgaZty dispossessed.” - •
Secondly, it is declared “ the lease shall Toe void without recourse to either party after such “ legal dispossession.”
We are inclined to think that the words used in the former clause quoted, in respect to the assignment of any title or interest acquired in said lands during the “ life of the lease,” must be held to carry to the plaintiff all rights acquired by the defendants, until, and up to the period of time when it may be said the defendants were “ legally dispossessed,” and that the lease was not “ void ” until such “ legal dispossession.”
The important inquiry then comes to us, and we must determine whether the evidence discloses that' the defendants were “ legally dispossessed ” or had such legad dispossession taken place. The definition given of the word “dispossessed” by Mr. Webster, in his Unabridged Dictionary, is, viz.: “ deprimed of possession or occupancy,” and the same author defines “ dispossession,” viz.: “ the act of putting out of possession.”
In the ease presented by the evidence or finding of the learned referee, we find no act ousting or turning out of possession the defendants, or turning them out of the occupancy of the premises— nor of the dry-docks themselves, which may be said, to be part of the thing or. subject-matter of the demise.
[82]*82Under all the circumstances disclosed as surrounding the parties at the time the lease was entered into, 15th of July, 1871, we think it just and proper to assume that they contemplated, by the language used, that the rent should cease when and only when there was an actual ouster, an enforced deprivation of the occupancy, the actual possession of the premises, as well as the dry-docks. Besides, the use of the word legally seems in its connection to carry the idea that the parties stipulated for an event which should be accompanied with legal proceedings, or such legal proceedings as are resorted to, to obtain legal possession of demised yrenvises.
But, if we were to assume that the language employed by the parties in respect to paying rent, until “ legally dispossessed,” is to be construed as contemplating a cessation of rent, when an eviction took place, we could not, in the absence of a finding of fact that in good faith the defendants yielded to a paramount title (inasmuch as the case shows the contrary), and that there was a “substantial and effectual deprivation of the beneficial enjoyment of the subjects of the demise, hold that the defendants were relieved from their covenant to pay rent. (Moffat v. Strong, 9 Bosw., 57; Lounsbery v. Snyder, 31 N. Y., 516 ; Cowdry r. Coit, 44 Id., 386.)
The burden was upon the defendants to show that they acted in good faith, and without collusion with the State officers. (Morse v. Goddard, 13 Met., 177; Moffat v. Strong, 9 How., 64.) There was no act on the part of the plaintiff contributing to work a dispossession or an eviction, and the case is not brought within the principle laid down in Dyett v. Pendleton (8 Cowen, 728), and approved in Edgerton v. Page (20 N. Y., 283). In the case of the Home Life Ins. Co. v. Sherman (46 N. Y., 370), there was a surrender after a recovery of judgment, and that case is therefore distinguishable from the one before us.
Here the tenants induced the action of the State officers, and co-operated with them in the scheme to revoke the permit to the plaintiff, and to re-permit the defendants as to the premises, apparently with a view to escape payment for the use of the structures placed thereon by the plaintiff at a large expense, and which the defendants had stipulated to take and have the use and occupation of until an actual legal dispossession, and under a peculiar lease, with [83]*83provisions, we most assume, especially adjusted to the exceptional circumstances surrounding tbe thing, demised; and they ought to be held to tbe terms of tbeir lease until tbe happening of tbe exact events which were to render it void. *
We do not think they established that such events had transpired without any had faith on them part. In a sense they were the agents of the plaintiff, and it is not too much to require of them entire good faith before relieving them of the exact and full terms of their sealed lease, given to the plaintiff for the payment of rent of the dry-docks upon lands of the State.
If the views already expressed are approved and correct, we are of the opinion that no error was committed by -the learned referee upon the trial, calling for an interference with his report, and the judgment entered thereon, and the judgment should he affirmed.
Talcott, P. J., concurred; Smith, J., not sitting.
Judgment affirmed.