189 N.Y. 323 | NY | 1907
This action is brought by the city of Rochester to restrain the defendant water company from furnishing, distributing or selling water within the limits of the city of Rochester, especially to the defendant railroad company. The water company was incorporated on the 30th day of December, 1902, under the Transportation Corporations Law (Ch. 566, Laws 1890, amended ch. 617, Laws 1892) for the purpose of supplying water to the villages of Brighton and Fairport and the towns of Greece, Gates and Brighton in the county of Monroe, and with its certificate of incorporation were filed the consents of the local authorities of said villages and towns, *327
as required by section 80 of said law. The plan or scheme of operation adopted by said water company was to take its supply of water from Lake Ontario and lay its pipes or conduits thence southerly through the towns of Greece and Gates to the city of Rochester; through the city of Rochester to the town of Brighton, and thence to the village of Fairport. The railroad company is the owner and possessed of a right of way extending through the entire limits of the city of Rochester. About the time of its incorporation the water company, through assignment, obtained from the railroad company the right to lay its mains through the city of Rochester upon the right of way of the latter company, on an agreement to furnish said railroad company water at certain stipulated prices. The railroad right of way is intersected by many of the city streets. When the water company sought to lay its mains through Rochester on the railroad right of way the city authorities prevented it. Thereupon the water company brought an action to restrain the city and its officers from obstructing or interfering with the company in laying its mains. The city denied that the water company had acquired by its incorporation and the consents attached thereto any authority to enter within the limits of the city of Rochester, and also contended that by two acts of the legislature passed in 1903 (Ch. 59 and ch. 553, Laws 1903) the company was expressly prohibited from laying its mains within the city limits. The water company was successful in its suit, which was brought on appeal to this court, and the judgment of the lower courts affirmed. (Rochester Lake Ontario WaterCompany v. City of Rochester,
So far as is involved the right of the railroad company to purchase and receive from the water company all the water that it may require for railroad purposes, we are quite clear that the decisions of the courts below were erroneous. Whether the water company has a right to sell water to consumers in the city of Rochester generally or not, the railroad company is by the express terms of subdivision 4, section 7 of the Railroad Law (Laws 1892, ch. 690) empowered to acquire a supply of water that may be necessary for its uses and purposes and to build or lay aqueducts or pipes for the purpose of conveying such water and to condemn any lands that may be necessary therefor. Therefore, that company could have obtained a supply of water from Lake Ontario, or any other locality outside the city of Rochester, and carried the supply through a conduit on the very line which the water company has adopted. The water company, as determined by our previous decision, had the right to maintain its conduits for the purpose of carrying water to the towns beyond the city. So long as neither railroad company nor water company *329 exceeded its franchise rights the question of what structure should be employed for the exercise of those rights was a matter that solely concerned the two companies. It was not at all necessary that each company should build an independent conduit line. The parties could agree to construct a single conduit to be used in common by both, or either might agree to build it and the other pay for its use. This is exactly the effect of the agreement between the two companies. The way in which it is done or how the payments are made is immaterial. The railroad contributes its right of way, the water company builds the conduit line, and the balance of expense or contribution between the two is adjusted by the railroad company agreeing to pay so much for the water it may use. The delivery of water to the railroad company under this contract is, therefore, authorized under the railroad company's charter, regardless of our determination as to what may be the water company's rights.
The block of private buildings owned by the railroad company, but in no sense used or held for public purposes, presents, however, an entirely different question. If justified it must be justified solely under the water company's charter rights or its property rights. The question is one of great importance to the plaintiff, though but a small sum is involved in this case, for at great expense it has acquired a water supply and constructed a plant for the purpose of furnishing water to its inhabitants. If, as claimed by the appellant water company, it has the right to furnish water to all consumers in Rochester along the line of its mains, a competition will ensue by which the city may be deprived of a very substantial part of the revenue on which it relies for the maintenance of its water system, and for the payment of the interest upon the debt incurred in the construction of that system. If the water company should establish a lower rate than that fixed by the city it is apparent that the city would either lose as customers all consumers along the line of the water company's mains or would be compelled to reduce its charges for water throughout the whole city, for, *330 even if not illegal, it would be obviously impracticable to charge one set of customers one rate and another set of customers a higher rate. By chapter 553 of the Laws of 1903, already referred to, it was enacted that no person or corporation should furnish or distribute water within the city of Rochester, from pipes, mains or conduits, except under a franchise granted by an ordinance of the common council, and that any such right, license or permission to any person or corporation, other than the city of Rochester, should thereby be repealed and revoked. If, at the time of the enactment of this law, the water company had acquired a valid franchise to furnish water to consumers along the line of its mains, then, under our decision in the previous litigation between these parties, we may assume that the statute would be inoperative and ineffectual as against that appellant. We are, therefore, brought to a consideration of the construction and interpretation to be given to the various sections of the Transportation Corporations Law under which the appellant water company was organized, and by which its franchise was conferred. Before entering upon that discussion, however, it may be well to answer the argument of the appellant water company, that it is exercising only a property right as distinguished from a franchise right. It is urged that as it is the owner of the water in the main, and can furnish water to consumers adjacent to its conduit without entering upon the streets or public places of the city, it is exercising merely a right which every owner of property possesses, to sell his property to whomever will buy. It is insisted that if the owner of land should, upon his property sink a well or find a spring, he may sell the water to an adjacent landowner, and deliver it by a pipe or conduit, so long as he does not seek to enter upon public property, and that no law can deprive him of that right. This proposition may be conceded, but it has no relevancy to the present case. Neither water company nor railroad company obtained the water from the right of way. It is found in the center of the block on private land, not because it is a product of that land, but because it has been brought there from a distant *331 source, through a pipe line, which the water company was enabled to construct across the street solely by virtue of the franchise granted to it. There is no analogy between such a case and that of a private owner finding water on his land and furnishing it to his neighbor without having to ask the privilege from any government, local or state.
We now return to a consideration of the Transportation Corporations Law. Section 80 provides for the incorporation of water works corporations for the purpose of supplying water to any of the cities, towns or villages in this state and to the inhabitants thereof. But to authorize the filing of the certificate there must be annexed thereto a permit signed and acknowledged by the local authorities of the municipality to be supplied. Section 81, as amended by chapter 230 of the Laws of 1894, enacts: "Every such corporation shall supply the authorities or any of the inhabitants of any city, town or village through which the conduits or mains of such corporation may pass, or wherein such corporations may have organized with pure and wholesome water at reasonable rates and cost," and then provides that contracts may be made between such municipal officers and the company relative to the terms and conditions on which the water shall be supplied. By subdivision 2 of section 82 it is enacted that every such corporation shall have the power "to lay their water pipes in any streets or avenues or public places of an adjoining city, town or village, to the city, town or village where such permit has been obtained." It was upon this last provision that the decision in the case of Rochester LakeOntario Water Company v. City of Rochester (supra) proceeded. It was there said by Judge HAIGHT, writing for the majority of the court: "The purpose of this provision of the statute is manifest. The legislature did not propose that one municipality, which happened to be more favorably situated, should have the power to prevent another and adjoining municipality from obtaining water, where it becomes necessary to pass through the territory of such adjoining municipality to reach the source of supply. This was settled in the *332
case of Village of Pelham Manor v. New Rochelle Water Company
(
As the appellant water company had at the time of the enactment of chapter 553 of the Laws of 1903, neither franchise nor property right to sell and furnish its water in the city of Rochester, that statute was valid. It practically gave to the city of Rochester within its limits a monopoly of the sale of water by any system of public distribution. It had, therefore, sufficient standing to maintain this action. (Mayor, etc., ofN.Y. v. Starin,
The judgments of the Special Term and of the Appellate Division should be modified so as to except from the injunction therein granted such water as the appellant The New York Central and Hudson River Railroad Company may take for use for railroad purposes, and as modified affirmed, without costs of this appeal to either party.
EDWARD T. BARTLETT, HAIGHT, VANN, WILLARD BARTLETT and HISCOCK, JJ., concur; GRAY, J., not sitting.
Judgments accordingly. *336