
    Chauncey Witcher, App’lt, v. The Holland Water Works Co., Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    1. Villages—Right op water company to lay pipes in street.
    The laying of pipes for the supplying of water to cities and villages may be for a public use or purpose even where no contract has been made with the municipality to supply it with the water.
    3. Same.
    A street of an unincorporated village is subject to use for the purpose of ' supplying water to the' inhabitants of the village, and the placing of pipes in it by a water company, with the consent of the town authorities, does not impose an additional burden upon the fee. ■
    Appeal from a judgment dismissing the complaint upon the merits, entered upon a verdict rendered by direction of the court upon the trial at the Erie circuit, and from an order denying a motion made on a case and exceptions for a new trial.
    
      Frank C. Laughlin, for app’lt; Wallace Thayer, for resp’t.
   Lewis, J.

This is an action of ejectment to recover the possession, subject .to the public easement, of a part of the highway in the village of Holland, Erie county, the fee thereto being .in the plaintiff, and to compel the removal of certain water pipes and a hydrant from the street.

The defendant is a corporation organized under, chapter 737 of the Laws of 1873, and the acts amendatory thereof, for the purpose •of supplying water to the inhabitants of the village and town of Holland for culinary and drinking purposes, and for the extinguishment of fires, etc.

lifts a stock company, the stock being owned by private individuals. Water is brought from springs into the village through ■pipes laid underground. Hydrants have been placed by the defendant along the principal street of the village, and so located as to be .■accessible for use in case of fire. The supply and head of water •are ample for the purposes mentioned. The village' is unincorporated, but has a population of 600, having 174 buildings exclu.-sive of barns. The buildings are mainly located upon one street within a distance of about three-quarters of a mile. There are streets crossing the main street occupied by dwellings for a distance of about five-eighths of a mile. The average distance between the buildings on the main street is about thirty feet.

Written consent to lay its water pipes in the town of Holland was obtained of the officials of the town, and was properly filed before laying the pipes. Without the consent of the plaintiff the ■defendant dug trenches in the street in front of his house, placing three pipes therein, and erected a hydrant in front of his premises. The plaintiff’s premises are upon the main stréet in the center of the village. He owns the fee of the street. Near to bis dwellings are houses, stores and other buildings. ■ Defendant had at the time of the trial contracted to furnish water to fifty-two residences and places of business in the village, and had Actually supplied eleven houses with water, but it had not entered into any contract with the town authorities to supply the village with water.

The defendant is required, by § 81 of chapter 566 of the Laws of 1890, to furnish water at reasonable rates to all consumers who may wish to use the same. If the village to be supplied with water be incorporated, its board of trustees has power to contract with the company for the delivery of water to the village through hydrants or otherwise. No express authority is given by the act to the town authorities to make contracts for supplying water to the inhabitants of the town. The village of Holland being unincorporated, it must be treated as a part of the town of Holland. Section 82 of the act gives to incorporated water companies the power to lay and maintain their pipes and place hydrants for delivering and distributing water in any street, highway or public place of any town or village, when it has obtained the permit to lay its pipes in the highways as required by § 80 of the act.

The act of 1890 took effect on the first day of May, 1891. The pipes were laid in front of the plaintiff’s premises in November, 1891.

A verdict was directed in defendant’s favor, and was, therefore, in effect a decision that the plaintiff was not entitled to recover upon any finding warranted by the testimony. Stone v. Flower, 47 N. Y., 566.

The plaintiff asked to go to the jury upon the question whether the laying of the pipes and the placing of the hydrant in the street in front of plaintiff's premises was an additional burden on the fee. The motion was denied.

The right of defendant to lay the pipes, etc., without making compensation is a question of law. Whether the use was a public one, or private property was taken, are judicial questions. Are these pipes, hydrants and water devoted to a public use? As we have seen, they are not at present in actual use under any contract with the authorities of the town, but only by individual residents of the village who have made contracts with the company. The company is required to furnish water to any of the inhabitants on the line of its pipes who desire to use the water. The hydrants are erected to furnish water for fire purposes. At the time of the fire there was no hose, or fire apparatus, nor fire company in the town, but the hydrants were so placed that they could be used advantageously for extinguishing fires. And it appeared from the testimony that the inhabitants were at liberty to use them for such purpose.

. Holland, though not incorporated,- is a large and populous village. The inhabitants thereof have all the requirements and necessities for the use of pure and wholesome water that they would ■ have were the village incorporated.

The streets of a populous village, or city, are subject to greater burdens and to a greater variety of uses than a rural highway. The extent of an easement in a street is to be measured somewhat by the necessities of the public. Johnson v. Thompson-Houston Electric Co., 54 Hun, 470 ; 28 St. Rep., 295. In Lahr v. Metropolitan Elevated R. Co., 104 N. Y., 292 ; 4 St. Rep., 340, Ruger, Ch. J., said: “ Statutes relating to public streets, which attempt to authorize their use for additional street uses, are obviously within the power of the legislature to enact.”

The act of 1890 confers the power upon water companies, after-having obtained the consent of the proper authorities, to use the streets and highways for the distribution of water to the public.

If Holland were an incorporated village, and the defendant had entered into a contract with the trustees to supply the village with water for fire or other purposes, the right of the defendant to use-the streets with its pipes without compensation to the owners of the fee would not be questioned. 'The village being unincorporated, such a contract could not be made, but the necessities of the people for water are the same as they would be if the village were incorporated. Six hundred people have their homes in the village, and the evidence tends to show that many of them desire to avail themselves of .the use of the water furnished by the defendant. That being so, is not the defendant furnishing water for the use of the public ?

It was said by Mr. Justice Haight, speaking for the court of appeals in the case of Pocantico Water Works Company v. Bird, 130 N. Y., 249, 258; 41 St. Rep., 315: ‘The question of public-use is a judicial ,one and must be determined by the courts. It is not affected by the agency employed, for it may be vested in private persons, who may be actuated solely by motives of private gain if the use to be made thereof is for the benefit óf the public. * * * It is doubtless true that in order to make the use-public a duty must devolve upon the persons or corporation holding the property to furnish the public with the use intended. The term implies ‘ the use of many,’ or ' by the public,’ but it may be limited to the inhabitants of a small or restricted locality, but the use must be in common and not for a particular individual.”

It was decided in St. Helena Water Co. v. Forbes, 62 Cal., 182, that the supplying of the inhabitants of a town with pure, freshwater is for a public use. To supply a city or town with water is a public purpose for a public benefit. Olmsted v. Morris Aqueduct, 46 N. J. Law, 495, 499; Bloomfield Gas Light Company v. Richardson, 63 Barb., 437. The use of water by each particular individual is private; but in a larger and broader sense it may be said that the use of it by all, or a large part of the residents in a populous village, is for the public benefit.

It must be held, we think, that the laying of pipes for the supplying of water to cities and villages may be for a public use or purpose even where no contract has been made with the municipality to supply it -with the water. Assuming then that the-supply of this water was for a public use, did the laying of the pipes and the erection of the hydrant in front of plaintiff’s premises constitute a taking of his property right in the soil and amount to an additional burden upon the fee? There are many authorities holding that such use of a street in incorporated villages does not impose an additional burden upon the fee. Thig street in question must be held, we think, to be an urban street and not an ordinary rural highway.

This case is distinguishable from the cases which hold that the appropriation of a rural highway for the conveying of water to another town or village, the inhabitants along the line of the pipes not being entitled to the use of the water, is imposing an additional burden, for that is the taking pf one’s property for the use of others, he having no right to the use thereof.

In the case at bar the plaintiff is entitled in common with all the other inhabitants of the village to the use of the water. The health and comfort of the people are promoted by the use of wholesome, pure water. The buildings and property of the village are, to a great extent, thereby protected from fires. This street must be held, we think, to be subject to use for the purpose of supplying water to the inhabitants of the village, and that the placing the pipes in it by defendant did not impose an additional burden upon the fee.

Defendant not having a contract with the authorities of a village to supply it with water cannot exercise the right of eminent domain. But its right to use the streets of this village for its pipes is based not upon its right to condemn property, but upon the doctrine applicable to the use of urban streets for such purposes.

The plaintiff failed to make a case entitling him to a verdict. The judgment and order appealed from should be affirmed.

Dwight, P. J., and Macomber, J., concur  