We affirm the judgment below but on the sole ground that defendant is, by the terms of section 634 of the Conservation Law (Cons. Laws, ch. 65), exempted from the licensing requirements of that section, as having some "right lawfully and previously acquired," with the State's consent, to divert water from the Niagara River for power purposes.

Since the statute itself thus excludes defendant from its coverage, and because the State itself is not a party to this litigation, we make no determination as to the particular nature and extent of defendant's rights or privileges as acquired from the State or as riparian owner, or as to the effect thereon of the State's reserved right to control, regulate or license, through appropriate legislation, the diversion of water from the Niagara River at and near Niagara *Page 357 Falls. (See Niagara Falls Power Co. v. Water Power ControlCommission, 267 N.Y. 265.)

The judgment should be affirmed, without costs.

LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur.

Judgment affirmed.