
    Warsaw Water Works Company, Appellant, v. The Village of Warsaw and Others, Respondents.
    
      Villages — water works commissioners of a milage may establish an independent system of water works for it-— they are not obliged to take the-works of an existing company.
    
    A water works company, incorporated by chapter 804 of the Laws of 1869, cannot compel the water commissioners of a village, acting under the authority of the general act, known as chapter 181 of the Laws of 1875, to acquire its. privileges and franchises against their will, notwithstanding the fact that the statute incorporating the water works company -invests- the trustees of the village with the power of regulating the manner in which the pipes and structures of the water works company should be laid, authorizes them under certain conditions to subscribe to its capital stock, and enacts that ‘ ‘ the said company shall furnish water to the trustees of the said village for extinguishing fires and other purposes, as-may be agreed upon between the said trustees and the said company.”
    The provisions of section 22 of chapter 181 of the Laws of 1875, permitting boards of water commissioners to institute proceedings to acquire “the rights, privileges, grants and properties" of water works companies, do not require the water commissioners of a village to do .this where they deem such action unnecessary of inexpedient.
    Appeal by the plaintiff, the Warsaw Water Works Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Wyoming on the 3d day of September, 1896, upon the decision of the court rendered after a trial at the Wyoming Trial Term before the court without a
    The trial judge found, as conclusion of law: “That at the time the defendants constructed its system of water-works in the village of Warsaw, and at the time of the commencement of this action, they were entitled to establish and maintain a system of water works in and for said village, under chapter 181 of the Laws of 1875, and the acts amendatory thereof and supplemental thereto, without purchasing and acquiring the rights, privileges and franchises of the plaintiff.”
    ■ When the action was .commenced a preliminary injunction was obtained restraining the defendants from constructing and maintaining its water works. The injunction order was dissolved and an appeal was taken to this court from the order dissolving the injunction, and this court refused to restore the injunction and affirmed the order, as appears by the opinion delivered on that occasion reported in 1 Appellate Division, 509.
    Plaintiff is a domestic corporation in virtue of chapter 391 of the Laws of 1869.
    The village of Warsaw is a municipal corporation, having been incorporated March 17, 1870, and several acts have been passed amendatory of its charter. The other defendants are its board of trustees, who were acting as a board of water commissioners by virtue of the authority contained in chapter 181 of the Laws of 1875.
    The act under which the plaintiff was incorporated authorized the plaintiff to acquire, by purchase and otherwise, title to lands; to lay pipes and other structures in the public streets of the village; and •vests ■ in the trustees of the village the power of regulating the 'manner in which said pipes and structures shall be laid, and authorized the trustees of the village to subscribe for not to exceed $3,000 of the capital stock of the plaintiff when authorized by a special election of the electors. Such an election was held and a subscription was made of $3,000 by the village.
    It was provided in section 16 of the act incorporating the plaintiff, viz.: “ The said company shall furnish water to the trustees of ,the said village for extinguishing fires and otlier'purposes, as may be -agreed upon between the said trustees and'' the. said company.” Hydrants were attached to the plaintiff’s mains in several different .streets of the village, and the compensation for. furnishing water to the village for fire protection was regulated by contract previous to July 1, 1894. The .trustees of the village refused to enter into any further written contract, and about the 1st of July, 1895, the trustees of the village declined to take water from the plaintiff for any specified time. thereupon the plaintiff denied any authority in the board of trustees to deprive the plaintiff of the privilege of furnishing water for fire protection, and the plaintiff claims that, with•ont such privilege of furnishing water for fire purposes and for the purpose of supplying dwellings upon the streets, the franchise of the plaintiff.would be rendered of little or no value; and'that .since the construction of the defendant’s works' the receipts of the ■plaintiff .have been diminished from $6,000 to less than $1,000 per year. '
    • The answer of the defendant, 'while admitting that it was the .duty of the plaintiff to furnish water to the trustees of the village for extinguishing fires and other purposes, as might be agreed upon between the trustees, alleged that for several years the plaintiff failed to furnish to the village, or the inhabitants, pure and wholesome water in a sufficient quantity, and that it wholly failed, during all of the time, to furnish a sufficient supply or force of water for 'fire protection, and thereby violated its duty and obligations imposed upon it by its charter.
    
      Eugene M. Bartlett, for the appellant.
    
      I: Sam Johnson, for the respondents.
   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 the 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 Supreme 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.  