72 N.J. Eq. 347 | New York Court of Chancery | 1907
In Millville Gas Light Co. v. Vineland Light and Power Co., ante p. 305, the provisions of defendant’s charter are quoted and considered at some length. Defendant’s charter act granted to it the right to lay gas pipes in the streets of the “town of Millville and its vicinity.” Millville was then (1857) an unincorporated village in the township of Millville, and the boundaries of the township of Millville at that time included the territory no.w comprising the township of Landis. In the opinion referred to the view is entertained that the language “the town of Millville and its vicinity,” refers to the village of Millville and its vicinity, and not to the township of Millville and its vicinity. The view is also therein expressed that without something to show that the expression “Millville and vicinity” was intended to include more territory than would naturally be impoited by that expression, the language could not properly be understood to include the entire township of Millville as it then existed. I still entertain the views expressed in that opinion, and I find nothing in the record in the present case to indicate a different legislative intent in the use of the language. Hpon the record before me I feel obliged to hold that the rights conferred upon defendant company in the act of 1857 related to the territory then comprising the village of Millville and its immediate vicinity. In Madison v. Morristown Gas Light Co., 65 N. J. Eq. (20 Dick.) 356, 358, similar language similarly used is commented upon as follows:
“Vicinity, as used in the statute, applies only to the streets, lanes, alleys and public places adjoining the village of Morris-town. * * * The act of incorporation of defendant company is not difficult of construction. Its language construes itself. The company is incorporated to supply gas Tor the purpose of lighting the streets, buildings, manufactories and other places situated in Morristown and its vicinity.’ Every building or other place in Morristown may be lighted. Buildings in the vicinity of Morristown may also be lighted. The intent was to give the defendant the right to lay gas pipes and light Morris-town and the buildings or factories lying in its vicinity—that is, adjoining Morristown.”
It is also urged, on behalf of defendant, that this court cannot properly forbid the use of that portion of the gas pipe which, had already been laid in the township of Landis when the restraining order in this cause issued. The application for a. mandatory writ compelling the removal of the pipe, already in place, will not be entertained before final hearing; but the conclusion already reached to the effect that defendant is without, authority to occupy the highway in question with gas pipes, if sound, manifestly justifies this court in restraining defendant from taking the pipe into use as a part of its system. At present.
Defendant also urges that the record discloses that the present bill is not filed by the township in good faith, but that the bill is essentially one at the relation of an opposition company. I am unable to reach this conclusion. The propriety of the resolution authorizing the filing of the present bill is a legislative and not a judicial question, and the exercise of legislative discretion cannot be interfered with by this court in the absence of manifest fraud.
I will advise a preliminary injunction covering the scope of the present restraining order.