
    Village of Pelham Manor, App’lt, v. The New Rochelle Water Company, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed November 27, 1894.)
    
    Water Works Company—Powers.
    The authority, conferred by § 9, art. 7, of chap. 566 of 1890, may be exercised by a water works corporation, wherever it is necessary to lay its pipes in the street of an adjoining town or village in order to execute effectually and pioperly the purpose for which it was created.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order which affirmed a judgment in favor of defendant entered upon a decision of the court dismissing the complaint on trial at special term.
    
      Jabish Holmes, Jr., for app’lt; Martin J. Keogh, for resp’t.
    
      
       Affirming, 51 St. Rep. 369.
    
   O’Brien, J.

The equitable relief which the plaintiff sought to obtain in this action was to restrain the defendant from the use of one of the highways within the corporate limits of the plaintiff and known as the Boston Turnpike Road. . This highway was. under the exclusive care and control of the plaintiff’s board of trustees. The defendant is a corporation organized under chapter 737 of the Laws of 1873, for the purpose of supplying the village of New Rochelle with water, and it now exists under the act of its creation, which subsequently became incorporated into and a part of the general statute on this subject Laws of 1890, ch. 566. art. 7, § 2; Cameron v. New York & Mount Vernon Water Co., 133 N. Y. 336; 45 St. Rep. 212: The village of Pelham Manor and the village of New Rochelle are adjoining villages, and the claim of the plaintiff is’that the defendant had no power or authority to lay down its water pipes or mains in the highway in question or use it for the purpose of executing the purpose of its incorporation, without the plaintiff’s permission, expressed through its constituted municipal authorities. This permission was not obtained, and if it was necessary the plaintiff had the right to protect its streets and highways from any unauthorized interference on the part of the defendant. .Among the powers conferred upon the defendant by the acts of 1873 and 1890, above referred to, is the authority “ to lay and maintain their pipes and hydrants for delivering and distributing water in any street, highway or public place of any town or village in which it has obtained the permit required by § 80.” This provision authorized the defendant to use the streets or highways of New Rochelle, but not of any other village or town. But, by another section of the act, water companies are also authorized “ to lay 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.”

It was under this last provision that the defendant claimed the right to occupy the highway in question. The defendant’s position lias been sustained by the court below, and obviously the controversy turns upon the proper construction of this statute. The contention of the plaintiff is that the statute only permits the defendant to lay its pipes in the streets of an adjoining town when it is necessary to reach the village granting the permit from the source of supply. In other words, that when an adjoining-town intervenes between the source of supply and the village or town to be supplied then the company may use the streets of the adjoining village or town, but not otherwise. It is said in support of this position‘that the statute could not have intended that a company such as the defendant should have the right to,use the streets of an adjoining town to any extent that it thought necessary unless in passing from the source of supply to-the point of distribution. The defendant had no franchise to supply the plaintiff with water, and the legislature did not anticipate any abuse of the power to lay pipes in an adjoining town by a corporation that could not carry on its operations there or receive any revenue from such town or its inhabitants. The question is, whether it was not the intention of the legislature to permit the defendant to do what it did when it became necessary in order to effectually and properly execute the purpose for which it was created. The defendant was bound by the conditions of its incorporation and by contract to supply the village and town of New .Rochelle and the inhabitants thereof with pure and wholesome water, and the trial court has found that in order to perform that duty it became necessary to lay its pipes under the road in question. What the defendant did was to use the road for about five bunded feet in order to conduct- two of its mains which terminated in “ dead ends ” near the boundary line of the two towns. This connection completed the circuit and added greatly to the pressure, besides furnishing running instead of stagnant water. So long as the defendant was without power to add to its revenues by furnishing water to the plaintiff or any of its inhabitants no great mischief is to be apprehended from any extensive use of the streets by the defendant. But the legislature evidently anticipated that a water company in performing its functions of supplying the town, and every part of it which granted the permit, with water might, for some reason, find it necessary to cross the boundary line of an adjoining town and úse its highways, not for the purpose of supplying that town, but for the purpose of properly and effectively executing the purpose of its creation. Such necessity has been found in this case as matter of fact by the trial court, and hence the pefmission of the municipal authorities who had charge and control of ■ the highway was not necessary. To hold that the power to go into án adjoining town was limited to cases where such town intervened between the point "of supply and distribution would be adhering too closely to a literal or grammatical construction and would ignore the public and beneficial purpose of the statute. In this case it became necessary, in order to supply New Rochelle with pure and wholesome water, to cross the town line and use a highway within the plaintiff’s corporate limits for five hundred feet. We think that the statute, fairly and reasonably construed, conferred the power upon the defendant, although the point in the adjoining town where the extension was made did not intervene between the source of supply and the place of distribution.

The judgment should, therefore, be affirmed, with costs.

All concur. Judgment affirmed.  