
    Village of Bolivar, Respondent, v. Bolivar Water Company, Appellant, Impleaded with Others.
    
      Water company franchise—right of village trustees to grant it — the company can-riot, as a defense to the performance of conditions, set up- want of authority in the trustees—duty to detach existing hydrants—judgment of forfeiture of franchises, giving an opportunity to comply with the conditions.
    
    Section 81 of the Transporation Corporations Law (Laws of 1890, chap. 566), giving authority to the board of trustees of any incorporated village “to contract in the name and behalf of the municipal corporation of which they are officers, for the term of one year or more, for the delivery by such company to the town, village or city, of water through hydrants or otherwise, for the extin- . guishment of fires and for sanitary and other public purposes,’’.authorizes the board of trustees of such a village to make a contract, embodied in resolutions passed by it, by which they grant to two designated persons the right to install a system of water works in its streets and use existing hydrants owned by the village upon condition that such hydrants, together with additional ones to be thereafter erected, should be connected with the system so constructed and that for the use of the water for fire protection the village should pay annually to such persons the sum of $250 for a period of five years with the right to a renewal at that price at the expiration of said time and that in case of a failure to complete the system by the specified time “this grant, franchise or privilege"be null and void and of no effect.”
    A corporation, to whom the persons mentioned in the resolution assigned their interest and which has availed itself thereof by installing its system of water works in the streets, but has neglected to connect the village hydrants with its system, cannot repudiate its liability to make such connection by asserting want of authority in the trustees to grant the franchise.
    The obligation of detaching the existing village hydrants from the old system is imposed upon the corporation'.
    In.the event of the refusal of the corporation to connect the existing village hydrants with its system by the time mentioned in the resolutions for the completion of the work, although it is practicable and feasible to do so, the court is justified in declaring the franchise terminated, and the corporation cannot ‘ in such a. case complain if the court,, in an action brought by the' village to declare the resolutions null and void because of such failure, gives it the right to specifically perform its contract.
    Appeal by the defendant, the Bolivar Water Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Allegany on the 17th day of October, 1900, upon the report of a referee.
    
      
      C. A. Farnwm and W. T. Bliss, for the appellant.
    
      Charles JB. Brown, for the respondent.
   Spring, J. :

This action was commenced September 6, 1899, by'the.plaintiff, a small incorporated village in the county of Allegany, to declare null and void certain resolutions and consequent privileges under which the defendant has constructed a system of water works in said village .of Bolivar. Louis Seibert and Stanley F. Booth, in the early part of 1898, applied to the board of trustees of said village for permission to put in a system of water works therein. There was already in use for fire purposes in said village an inadequate plant, with eighteen hydrants. On the 26th day of May, 1898, a resolution was passed by said board of trustees allowing said Seibert .and Booth the use of the streets of said village for the purpose of putting in said system and also according to them the use of the hydrants already owned by the village. This privilege was granted upon the express condition embodied in said resolutions that these hydrants were to be connected with the system constructed by said Seibert and Booth and additional hydrants were to be added until the number of thirty-five were distributed throughout the village. Said resolutions further provided that said Seibert and Booth should lay said mains in trenches of sufficient depth to be below danger of freezing in the streets shown on the plan made by J. E. Witmer, C. E., and now on file with the Clerk of the Board of Trustees of said Village of Bolivar.” And further that the pipes through •which the water was to run should be laid and that the hydrants should be placed in accordance with a plan or map on file with the clerk of said village. That for the use of the water for fire protection the village should pay annually to said parties the sum of $250 for a period of five years, with the right of renewal at that price at the expiration of said time. The resolutions required said grantees to complete said system by September 1,1899, and in case of failure so to do they further provided that “ this grant, franchise or privilege be null and void and of no effect.”

At the time these resolutions were adopted it was supposed that there were about twenty-five hydrants already in use by the village.' It was later ascertained that there were only eighteen and a resolution was accordingly passed by said board of trustees on the 22d of August, 1898, modifying the original resolutions by requiring said Seibert and Booth to use said eighteen hydrants and to furnish eight in addition, making twenty-six the total number to be attached to said system. Said resolution further provided that said hydrants were to “ be placed at the points as set down oh said map mentioned in said grants as shall be specified by this board,” and that the village could at any time increase the number to thirty-five Without additional expense, and tees were to be placed by said Seibert and Booth as indicated on the map in readiness to connect the additional hydrants with the plant whenever the village elected to do so. These resolutions constituted the only right or franchise possessed by said Seibert and Booth for the use of said streets in putting in its water system. It is obvious that by these resolutions, accepted as they were by defendant and its predecessors, a contract was made assuring to these parties the use of the streets with the privileges which that implies, and on the part of the village insuring to its inhabitants protection against fire. (Jugla v. Trouttet, 120 N. Y. 21, 27.)

Seibert and Booth, on the 15th of October, 1898, transferred all their rights in said franchise'and contract to the defendant which had become incorporated and of which said Seibert and Booth were two of the incorporators. The organization of this company for tlie purpose of putting in said system pursuant to said resolutions was assented to by the board of trustees.

The defendant, in the fall of 1898, proceeded to put in said system, and during the summer of 1899 it was completed sufficiently to furnish water to private consumers. In the construction of the plant the pipes were laid to the depth of five feet. The hydrants already in use owned by the village were connected with pipes only three feet and six inches from the surface of the ground. While these hydrants were of the same general design as those purchased of the defendant they were considerably shorter. The problem was thus presented to the defendant of connecting these hydrants with the conduits so that the force and supply of water for fire'purposes would be undiminislied, and this difficulty gave rise to the controversy between the parties.

It appears that the officers of the defendant made no examination for the purpose of ascertaining the length of these eighteen hydrants owned by the village. When they learned they were not of sufficient length to reach to their conduits' they made no attempt to attach them. The referee has found upon facts amply justifying that finding that three feet six inches constitute a sufficient depth to prevent danger from frost in connecting. the hydrants with- the pipes through which the water runs. There is also proof to show that by a contrivance called a goose-neck, a connection may be made that will be practical and feasible even though the hydrant is quite a distance above the line of pipe.

Various defenses are urged on behalf of the water company. It is contended that it manifested a willingness to comply with the terms of the contract as embodied in the resolution. By the notice dated June 26, 1899, and served upon the plaintiff, the defendant stated that its water plant was fully completed and that it was ready “to furnish water to the Village of Bolivar as provided in said grants and franchise, such furnishing of water to date from the first day of July, 1899.” At the time this notice was served the defendant knew that the hydrants of the village had not been connected with its system, and, therefore, knew that it was hot ready to furnish water as contemplated by the resolutions. In answer to this notice the board of trustees returned a notice dated July 10, 1899, calling attention to the fact that the defendant had not completed its contract until the eighteen hydrants were attached to its water main, and further notifying it that in the event of the failure of defendant to comply with the conditions of the contract on or before September 1, 1899, the franchise will become null and void and of no effect and a forfeiture ” would be insisted upon. On July 17, 1899, the defendant notified the plaintiff in writing that if the “ hydrants are actually detached from the water line to which they are now attached and upon their actual delivery into the custody of this corporation ” they would be attached to the mains of the defendant at the places indicated- by the village. The board of trustees on July twenty-fourth replied to this notice that the burden was upon the defendant to make these connections and not upon the village, and reiterating its determination to declare the grant forfeited in case of the failure to comply with the agreement. Nothing further having been done, on the 3d of September, 1899, resolutions were passed declaring null and void the franchise granted to said Seibert and Booth, and rescinding the agreement. This correspondence on the part of the plaintiff does not indicate, an intention to repudiate the agreement as claimed by the counsel for the appellant. The trustees, on the contrary, were seeking to secure the protection against fire which was the consideration for the privilege granted. "Unless the hydrants were connected with the new plant the purpose of the grant failed, and failure to perform ipsofacto abrogated the franchise. •

It is contended' that the board of trustees had no authority to-grant the franchise to the defendant originally ; that the authority must have been vested in the board of water commissioners. Section 81 of the Transportation Corporations Law (Laws of 1890,. chap.. 566, as amd. by Laws of 1894, chap. 230) gives authority to the board of trustees of any incorporated village to contract in the name and behalf of the municipal corporation of which they are officers, for the term of one year or more, for the delivery by such company to the town, village or city,- of water through hydrants or otherwise, for the extinguishment of fires and for sanitary and other public purposes.” This gave ample authority to the board of trustees to pass the resolutions which constitute the contract between the parties. While chapter 181 of the Laws of 1875 provides in extenso for the organization of the board, of trustees into the board of water commissioners, yet the chief purpose of that organization arises where the water plant is owned, by - the municipality. But aside from this question the defendant is in no .situation to assail these resolutions for lack of authority, for two reasons : First, the answer. contains ho such defense;. second,, the resolutions constitute the sole franchise- or right ■ which the defendant has,, and it has availed itself of the privileges accorded it, and is deriving a revenue from the use of its plant.. After having accepted the benefits which accrued to it, it cannot repudiate the agreement on its part on the ground that its franchise was-unauthorized. Again, it is urged that it is impossible to connect the hydrants of the village with its plant, and that the finding of the referée that the defendant dug the trenches for its mains deeper than was necessary to be below -danger of freezing ” was not warranted by the evidence. We think this was a fair question of fact, and it is not for this court to disturb that finding unless against the weight of the evidence, and it is decisive of this case. The defendant relies .upon its offer to make the connection with these hydrants if the village would detach them from its present system. This offer indicates that the defendant was satisfied that the connections could be made without impairing the utility of the system.. In any event the duty was imposed upon it to furnish water * * * for fire protection * * * for a period of five years.” The plant would not be completed until it was fully equipped to meet that requirement. To obtain that security to the property within the village was the chief inducement for the granting of the franchise. The village was not to perform any work in the construction of the system. Its trustees were to designate where the hydrants were to be located, but they were to be placed by the defendant. Seibert and Booth knew the hydran ts of the village must be detached from the old plant before they could become a part of the new system. They understood they must disconnect these hydrants, and attach them to their plant when they undertook to “ furnish water to the village * * * for fire protection and through the said hydrants.”

It is claimed that the action, was brought to obtain a rescission of the agreement and that specific performance was improper. All the facts are set forth in' the complaint which 'warrant the conclusions reached by the referee, and they are well sustained by the evidence, The referee made the most lenient and favorable deter, mination for the defendant which the facts permitted. A strict and technical construction of the agreement, in view of the signal failure of the defendant'to comply with its most important provision, would have justified the referee in terminating the franchise, and thus destroying the plant of the defendant. The result of this would have been to render valueless' the bonds held by the defendant Richardson, so far as that value depended upon the lien which the bonds created upon the plant. The referee very properly, instead of enforcing the contract in this drastic way, gave the defendant the right to perform its contract specifically, which would protect its property, and also the defendant Richardson, as trustee. The judgment directed by the referee was embraced “ within the issue,” and, therefore, permissible. (Code Civ. Proc. § 1207; Valentine v. Richardt, 126 N. Y. 272.)

It is urged that the defendant could tear up the streets of the vil lage and put in its. water system without any authority or grant from the village. We think the contrary is sustained by authority. (Laws of 1890, chap. 566, § 80; Barhite v. Home Tel. Co., 50 App. Div. 25, 31.)

The trend of modern legislation is to transmit this power from the State Legislature to the local body charged with the supervision and government of the municipality. (Barhite v. Home Tel. Co., supra.)

The ordinances enacted by the. plaintiff • also prohibit this use, without the permission of the president or trustees expressly providing that no ditch shall be. made for a main or side water pipe for any purpose in said village, except by authority of said president or trustees and under the supervision of the street commissioner of the village.

The referee properly disposed of the case, and the judgment is affirmed, with costs to the respondent.

All concurred.

Judgment affirmed, with costs.  