Public Service Corp. v. Town of Westfield, 80 N.J. Eq. 295

Public Service Corp. v. Town of Westfield

80 N.J. Eq. 295 | New York Court of Chancery | 1912

Emery, V. C.

(after statement of facts and issues).

The right of complainant to maintain the poles erected for the new transmission lino through Westfield, is placed upon two grounds. The first is the right to use all the streets located in the territory comprised in the township of Westfield in 1891, at the time of the incorporation of the constituent companies, the Suburban and Union county companies in 1891, while the act of 1884 was in force, and all the streets in the territory of the township in 1898, when the Consumers company was organized and the law of 1896 was in force. This right, under the certificates of organization, is claimed to be, so far as the location of poles is concerned, an absolute and vested right of property arising under the acts and the certificates of incorporation, not limited by any municipal control over designation of location, in any of the streets of highways covered by the operation of their charters, except to the extent that those streets or highways were, at the time of incorporation, within the limits of then existing cities and towns. In the certificate of the Union county company the business was to be conducted at “Rogelle, in the county of Union, and other places in said county,” and the business of the Suburban “in the city of Elizabeth and such other counties and places in this state as said company may find it necessary for the proper and profitable conduct of its business.”

The streets in which rights of location under these certificates are claimed are not in the localities specially named as the places *301of doing business, and assuming that the general designations are sufficient to comply with the statutory requirements as to the places of business and the objects of the corporation, the right now claimed outside of Roselle and Elizabeth is, that under the Union county certificaté that corporation received at once an absolute vested legislative right to locate its poles in all the territory of Union county not then comprised within incorporated cities and towns, and under the suburban certificate a similar right in all the territory in Union or other counties throughout the entire state not then (1891) included within the boundaries of cities or incorporated towns.

Under the Consumers company, where the object of the company was specifically stated to be the supply and distribution of electricity in the counties of Middlesex, Union, Essex and Hudson, similar vested and absolute rights of propertyship are claimed, arising on its incorporation in 1898 and extending over all the territory in these four counties, not then included within the boundaries of cities or towns therein.

If the rights given by the acts of 1884 and 1896 and the certificates of incorporation are property rights to locate poles for electric supply in territory which must be taken as specifically defined by the acts and the certificates, these rights are not subject to subsequent limitation or change by municipal act, when accepted and acted on, as they were in this ease, by the erection of poles in some of the streets of the territory included in the grant for the purposes of the business specified in the charter. But manifestly rights of this extent and character must be clearly conferred. The question to be decided is the extent and operation of the grant made by the acts of 1884 and 1896, both of which acts include the proviso as a limitation on the grant itself, and in both of which the proviso must therefore be construed with the grant. This question differs essentially from the question decided in cases relied on by the complainant, where there were subsequent municipal acts revoking the designation .of streets and these subsequent revocations were held to be void. Hudson Telephone Co. v. Jersey City (Supreme Court, 1887), 49 N. J. Law (20 Vr.) 303; Phillipsburg Electric Light Co. v. Phillipsburg (Supreme Court, 1901), 66 N. J. Law (37 Vr.) 505, 507. And in the present case, if it were clear that the acts *302o£ 1884 and 1896 were intended to grant the rights to electric companies to use ail of the public highways of the state not within the limits of cities or towns at the passage of the act or at the time of their incorporation of the companies, then the subsequent incorporation into a toyn of a portion of the territory clearly intended to be included within the privileges of the legislative act, would not operate on or affect the previous legislative grant. Public Service Corporation v. De Grote (Vice-Chancellor Stevenson, 1905), 70 N. J. Eq. (4 Robb.) 454. But the question here is upon the construction of the grant itself limited, as it is on its creation, by tiro proviso, and the grant must be read and construed with the proviso, in order to determine what rights of property or other rights were conferred. Thus read together as one grant, it appears that the legislature, so far as incorporated cities and towns are concerned, intended to make a distinction in reference to the right of electric companies to an unrestricted choice of streets for location of poles, and further intended to reserve in favor of cities and towns the right of designation of the streets for location. This being apparent, the further question of statutory construction is whether, in reserving this right to incorporated cities and towns, the legislature intended to reserve this right of designation in favor only of those cities and towns which were incorporated either at the time of the passage of the laws or at the time of the incorporation of the companies. There is no apparent reason why, as to new lines of poles erected within its territory after incorporation .as a town, the newly incorporated town should not have the same privilege of designation and the same duties relating thereto as cities and towns incorporated at the passage of the acts, or at the time of the organization of the companies.

As to the lines of poles already existing at the time of the subsequent incorporation of a town and- their maintenance, such incorporation of the town is subject to the previous location of poles made under direct legislative grant which has been acted on, and as to these the town has no power to revoke or control the location. Nor lias the incorporated town the right to refuse to designate streets for new lines, but as the duties and rights of towns and cities relating to their streets and highways are con*303tinuous and are or may be subject to constant and, changing exigencies, the exercise of a right of this character which was certainly reserved to towns incorporated at the passage of the act, should not, I think, be construed to be taken away from any towns or cities incorporated or extended in their limits subsequent to the act, unless this distinction is clearly made by the act. I cannot see any such clear intention in this act, and, on the contrary, construing the grant in connection with the proviso, the proper construction of the effect of the act is that the right to use the highways was for the sole purpose of authorizing erections therein which would otherwise have been public nuisances, and had the incidental or consequential effect of conferring property rights on lire highways only to the extent that erections were made under the act; that subject to such property rights acquired by the erection, the power over highways remained in full force and effect—and that the further exercise of this power by the proviso in the act itself expressly conferring upon incorporated towns and cities a limited power to the extent of designation of locations within their limits was reserved in favor of ail cities and towns subject only to the property rights in lines already erected and maintainable against the ■ legislature itself.

The second ground upon which complainant rests its right is the enabling act of 1898. This act is relied on as a confirmation of the designation made by the township committee in March, 1892, on the application of the Suburban company. This designation extended to all the streets of the township, and its generality was no objection to its validity. Myers v. Electric Company (Court of Errors and Appeals, 1899), 63 N. J. Law (34 Vr.) 573. At the time of the passage of the act of 1898, it had not been decided by the court of errors and appeals that the “incorporated town,” under either the act of 1884 or 1896, included townships, but this had been the construction of the lower courts in reference to the telegraph .company statutes in which the same word “towns” was used. Broome v. Telegraph Company (1887), 49 N. J. Law (20 Vr.) 624; Township of Summit v. New York and New Jersey Telephone Co. (1898), 57 N. J. Eq. (12 Dick.) 123, 126. In the former ease, the court of errors and appeals, in affirming the judgment, reserved decision upon this point (50 N. *304J. Law (21 Vr.) 432, 434), and, subsequently, in East Orange v. Suburban Electric Light and Power Co. (1899), 59 N. J. Eq. (14- Dick.) 563, 570, &c., tlie appellate court decided that in the act of 1896 the word “incorporated town” in the proviso did not include townships, but applied only to cities and towns eo nomirle.

This act of 1898 was, on the face of it, a validating act, and the entire act must be considered for the purpose of applying it to the proceedings intended to be validated. Thus construed, the act, in my judgment, was intended to apply to municipal proceedings where previous authorization by the municipality was by law necessary for the construction of subways or pole lines, and to validate the municipal proceedings which purported to give this authority and which had been acted on. The clause of the act declaring that the electric companies which had constructed subways or pole lines under such proceedings, should be deemed to have all legal authority necessary to be secured from the municipality in order to construct the subways and pole lines in the streets is conclusive, I think, on the scope of the validating act, and shows that the intention of the act was to validate proceedings purporting to be taken to authorize the construction, where' the municipalities had, under their charter or other laws, the right to authorize. It was not, I think, intended to increase the already existing power of the municipality, but to cure defective proceedings purporting to act under the power to authorize.

On neither ground, therefore, are the complainants entitled to an injunction to restrain the removal of the new line of poles erected without previous designation. Counsel on both sides have argued fully the question of complainants’ right to maintain the poles, and have submitted it for determination. Strictly, however, the right set up by complainants is a legal right and the equity jurisdiction is in aid of the legal right, and if they desire to take the opinion of a court of law upon- the question of their legal rights, and will consent to appear and defend any action at law brought by the town to enforce the removal, I will hear an application for a continuance of the injunction pending the settlement of. the rights at law. Otherwise, the injunction will be denied and the bill dismissed.