Warsaw Water Works Co. v. Village of Warsaw, 16 A.D. 502

Warsaw Water Works Co. v. Village of Warsaw

16 A.D. 502 | N.Y. App. Div. | 1897

Hardin, P. J.:

In chapter 394 of the Laws of 1869, incorporating ..the plaintiff, no exclusive privilege is, in terms, conferred upon the corporation there created to supply the village or its citizens with water. (Power v. The Village of Athens, 99 N. Y. 592; Syracuse Water Company v. City of Syracuse, 116 id. 167; Matter of Brooklyn, etc., 343 id. 596 ; Lehigh Water Co. v. Easton, 121 U. S. 388; Colby University v. The Village of Canandaigua & Others, 69 Fed. Rep. 671; New Orleans Gas Co. v. Louisiana Light Co., 115 H. S. 650; Louisville Gas Co. v. Citizens’ Gas Co., Id. 683.)

Article 8 of the Constitution of 1846 provided that corporations should not be created by special act “ except for municipal purposes, and in cases where, in the judgment of the Legislature, the objects of the corporation cannot be attained- under general laws.” It also provided, viz.: “ All general laws and special acts, passed pursuant to this section, may be altered from time to time, or repealed.”

It must be assumed that the act incorporating the plaintiff, having been passed in 1869, was subject to the provisions alluded to found in the Constitution of 1846.

We think the contention of the appellant, that chapter 181 of the Laws of 1875, authorizing the municipality to construct a system of new water works. in the village of Warsaw, without acquiring plaintiff’s system, is unconstitutional and void, cannot be sustained.

¡Nor do we think that section 22 of the act of 1875 imposes an imperative duty upon the board of water commissioners to institute proceedings to acquire the “ rights, privileges, grants and properties ” of the plaintiff. The section seems to contemplate that if it shall become necessary, or be deemed necessary by the board of water commissioners, that such rights, privileges, grants and properties are required “ for any of the purposes ” of the act of 1875, then the power is conferred “to make, or cause to be made, a thorough examination of the works, rights, privileges and properties owned or held by such corporations.” Subsequent or concurrent with such examination, if the commissioners “ shall determine that said works, rights, privileges, and properties are necessary for the purposes of this act,” then power and right to make application to *506the Supreme Court in" proceedings to acquire the property by the appointment„of commissioners is conferred.

A somewhat similar power was conferred by sections 26 and 29' of chapter-224 of the Laws of 1849, being the act to incorporate -the Syracuse City "Water Works Company, and in speaking of those sections Bradley, J. (116 N. Y. 187), said, viz.: “It is, however, urged that the city can avail itself of no means, other than through the plaintiff, to obtain any water supply except by resuming and taking its property and powers in the manner prescribed in one of the sections 26 and 29 of the plaintiff’s charter, to which reference has already been made. It appears that those provisions were inserted in the charter at the suggestion or request of the common council of the city. And that was evidently done to enable it; in the event referred to in the one, and on the expiration of the time mentioned in the other, section, if the interest of the city should require it, to, take the matter of its water supply into its own management .and control." It is not seen that this right, reserved to the city, has any essential bearing upon the question of the construction of the grant to the plaintiff. It simply gave the city the opportunity, in the events -provided, to become possessed of the property which should constitute the plant of the plaintiff and be applied to-the service of furnishing water to the city. This right was not made a legal duty, upon the performance of which was dependent the power to use means, other than through the plaintiff, to obtain further means of Water supply for the city. It was a privilege-merely, which it might or might not exercise at pleasure. But the franchise granted to the plaintiff and the property united with it. constitute its estate, and which it holds subject to the reserved right of the city to acquire it in the manner so provided by the charter.”

In the case at hand we think the water commissioners of the village were not obliged to determine to acquire the rights of the plaintiff, or to determine, that- they were necessary. It is inferable that the water commissioners deemed and determined that the rights,, privileges and franchises of the plaintiff were not necessary, and that it was not expedient to acquire them. (Canandaigua Water Works Company v. The Village of Canandaigua, opinion of Rumsey, J., affd. at General Term, 90 Hun, 605.)

We have looked at the opinion delivered by Dean, J., in the *507Supreme Court of Pennsylvania in White v. City of Meadville (MSS. opinion, not yet reported), and we find that the statutes referred to in that opinion are quite unlike those that are ajiplicable to the case in hand. We think that case is quite unlike the one before us, and we ought not to allow the doctrine stated in the opinion to lead us to disregard the principles laid down in the opinion of Bradley, J., in Syracuse Water Worlcs Company v. City of Syracuse {supra). The conclusion reached in the court below should be sustained.

■ The judgment should be affirmed, with costs,.

All concurred, except Ward, J., not voting.

Judgment affirmed, with costs.