Village of Pelham Manor v. New Rochelle Water Co.
21 N.Y.S. 1110
| N.Y. Sup. Ct. | 1893
PRATT, J.

This is an appeal from a judgment rendered by the court at special term, dismissing the complaint upon the merits, with costs. The action is brought for an injunction to restrain defendant from laying its water mains in the Boston Post road; being within the municipal limits of the plaintiff, the village of Pelham Manor. Plaintiff contends that, before defendant can lawfully lay its mains in a public highway in said village, it must first secure the consent of the plaintiff; that, not having secured said consent, defendant’s acts in attempting to so lay its mains were unlawful,. and could be restrained by injunction. The facts in the case are asfollows: The plaintiff is a village and municipal corporation located within the town of Pelham, adjoining the village of New Rochelle. The defendant is a domestic corporation authorized to supply the village of New Rochelle, in said town of New Rochelle, with water for domestic purposes and public us'e.

The rights and powers of defendant are defined by chapter 566, art. 7» § 82, of the Laws of 1890, known as the “Transportation Corporation *1111Law.” Section 82 of said law declares that every corporation existing under said act, in addition to its ordinary powers, shall also have power “to lay their water pipes in any streets or avenues or public places of an adjoining town or village to the town or such village where such permit [a permit authorizing the formation of the corporation referred to in section 80 of the act of 1890] has been obtained.” The defendant obtained the permit referred to in section 80 of chapter 566 of the Laws of 1890 from the trustees of the village of New Rochelle, which adjoins the village of Pelham Manor. The permit must be signed by a majority of the trustees of the village, and must authorize the formation of the corporation for the purpose of supplying such village with water. This permit bears date December 8, 1884, but it is to be observed that this permit was granted under the law of 1873, c. 737, the provisions of which, so far as material to this inquiry, are embraced in chapter 566 of the act of 1890. Thereupon the defendant must be regarded as existing under the Laws of 1890; and under that act, among its provisions, is the following: “To laj7 their water pipes in any streets or avenues or public places of an adjoining town or village to the town or village where such permit has been obtained.” The defendant, having obtained the permit of, and entered into an agreement with, the village of New Rochelle, to supply it with water, brings itself within the statute quoted above, and no permit is required from the authorities of the plaintiff. In exercising the franchises possessed by the defendant, they are performing quasi public functions, and cannot be restrained by courts of equity, unless they are exceeding their powers. It is not claimed that the statute of 1890 is invalid. Neither did it appear that the acts sought to be restrained would result in irreparable injury to the plaintiff. Village of Tarrytown v. Pocontico Waterworks Co., (Sup.) 1 N. Y. Supp. 394. It is not material in what point of the compass the plaintiff is located from New Rochelle, as the court below has found: “Seventh. That it is nebessary for the defendant, in order to carry out its contract with the town of New Rochelle, to lay and connect its mains through and under the Boston Railroad, in the village of Pelham Manor,”—and such finding is fully sustained by the evidence. We have examined the exceptions taken upon the trial, and find none of sufficient merit to warrant a reversal of the judgment. I may add, in conclusion, that the constructions of the statute claimed by the plaintiff cannot prevail, for the reason that, if the right to lay a pipe in an adjoining town or village depended entirely upon a consent to be given by such village, then no water company could supply water to any village unless its source of supply was located in the village to be supplied. We think the construction given by the court below under the facts proved was reasonable and just. Judgment affirmed, with costs.