
    James W. Wakefield and Frederick L. Santway, Respondents, v. The Village of Theresa, Appellant.
    Fourth Department,
    March 4, 1908.
    Municipal corporation — power of village to grant electric lighting franchise — vested rights of grantee — franchise renewed by-implication.
    The trustees of an incorporated village have power to grant a franchise to an individual or corporation authorizing the installation and operation of an electric lighting plant.
    Such power, conferred by the Village Law, was not repealed by the Transportation Corporations Law.
    Where an individual and his successors in interest, in reliance upon such franchise, have expended money in erecting, extending and operating an electric lighting plant, the privilege to use the public streets becomes a property right of which the owners cannot be deprived, unless there be a forfeiture on their part or the plant become a nuisance.
    Although said franchise as originally granted was for ñve years, with a privilege of renewal unless the village should elect to purchase the plant, the village, having allowed the owner of the franchise and his assigns to avail themselves thereof from year to year without formal renewal, cannot impeach the validity of the franchise on the ground that it was not formally renewed, and will be enjoined from removing the poles and wires from the streets.
    Appeal by the defendant, The Village of Theresa, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Jefferson on the 12th day of March, 1907, upon the decision of the court, rendered after a trial at the Jefferson Special Term, enjoining the defendant from cutting down or removing certain poles and wires of the electric lighting system of the plaintiffs.
    
      William D. Morrow and John N. Carlisle, for the appellant.
    
      W. B. Van Allen, for the respondents.
   Spring, J.:

The village of Theresa is an incorporated village containing about 1,000 inhabitants. In April, 1895, by its president and trustees, it entered into a written agreement with one A. J. Reynolds, whereby it granted to him the privilege of using the streets of said village to erect poles, string wires and construct and operate an electric lighting plant. The method of exercising the privilege was specified in the agreement, particularly the kind of poles to be used, and their location in the streets of the village, in order to prevent interference with their ordinary use, or with the enjoyment of the premises of the owners of lands abutting on the streets. It contained these provisions : The party of tlie second part (the said Reynolds) is to put in, keep in repair and operate for the purpose of lighting said village and citizens at any point within the line of his appliances, where the said village shall direct, for the term of one year, three five hundred candle power incandescent lights free of charge, and is to furnish such lights as the said party of the first part (the appellant) shall deem necessary for the purpose of lighting said village and any of the citizens thereof, at all times when the said party of the first part shall desire or request the same, and shall receive therefor a compensation from said party of first part of a sum not to exceed the amount paid by any other village within this State of a like population, and using a like number of lights. * * * The said party of the second part is to have the said franchise for the term of five years from the date hereof, with the option at the expiration of said five years of continuing the same at the compensation paid for a like service in any other villages or manufacturing establishments for like service where there is no competition or if said village should terminate the said franchise at' the expiration of said five years for any other cause than for a failure of second party to fulfill all or any of the stipulations or .agreements herein contained then they are to purchase the said electrical appliances of said second party, then in active operation and pay him a fair and reasonable compensation therefor. Said party of the first part is to grant no other franchise or privilege for electric lighting during the said term except this be terminated for reasons stated above or by operation of law.”

Pursuant to the agreement Reynolds erected his plant and continued its operation until October, 1895, when he leased it to Stock-well & Parker, who carried on the business for about seven years. There were times when the service was unsatisfactory. The three lights of five hundred candle power each were never furnished and there was only one light of thirty-two candle power for street purposes. The light was intermittent-and occasionally the plant would not be operated at all. In March, 1903, the plaintiff Sant-way acquired the property and has since opérated it with his coplaintiff. In that year he improved it, erecting new poles, stringing new wires and otherwise adding to its efficiency ; all of which was done with the knowledge-and acquiescence of the village trustees and the street commissioner of the village performed the greater part of the work in connection with these improvements. Since that time the service has been very largely improved.

In 1900, when the five-year period expired, there was no renewal of the agreement. There was, however, no demand for a suspension of the business which has ever since been carried on without regard to any new agreement or extension of the old one.

In 1906 the village obtained from the State Commission of Gas and Electricity a certificate authorizing the building and maintenance of an electric lighting plant by the village of Theresa, and a municipal system is now being installed. In anticipation of this project a resolution was adopted by the village board of trustees in February, 1906, and a copy was promptly served upon the plaintiffs, requiring them to remove from the streets all their “ wires, poles, electric appliances or apparatus” within thirty days from the service of the notice. The resolution further provided: “ If said poles, wires and appliances are not so removed by them or caused to be removed by them within such time above designated, it is the intention of the village Board of Trustees to cause the same to be done and such poles, wires and appliances to be removed from the streets and highways of the village of Theresa, H. V., and if necessary to resort to any legal remedy as they may be advised to carry this resolution into full force and effect.”

This- action was commenced to restrain the defendant or its officers from carrying out the purpose expressed in the resolution, and, as a result of the trial, a permanent injunction has been granted.

The original agreement, in so far as it authorized Beynolds to install and operate an electric lighting plant for lighting the streets of the village, was valid. The trustees possessed the power to make such a contract with either a corporation or an individual. (Laws of 1870, chap. 291, tit. 4, § 8, added by Laws of 1891, chap. 139 ; Laws of 1888, chap. 452, § 1, as amd. by Laws of 1891, chap. 312, and Laws of 1893, chap. 473; Village Law [Laws of 1897, chap. 414], § 240.)

The agreement was made before the -Transportation Corporations Law (Laws of 1890, chap. 566, as amd.) took effect, and that act did not in any event repeal any of the acts referred to.

The power of the municipal authorities is to contract for lighting the streets and public grounds of the village. Subsidiary to that purpose is the furnishing of light to the inhabitants of the village, and this ordinarily becomes the chief support of the business, as it has been in this case. The provision for lighting the streets was very meager, and even that has not been complied with. During the twelve years the plant has been in operation there does not seem to have been any demand to give adequate light in the streets or to furnish the three lights provided for in the agreement.

In reliance upon the contract the plaintiffs and their predecessors in interest expended money in erecting, extending and operating the plant, and the privilege granted to use the streets became a valuable property right of which the owners cannot be deprived, unless there has been a forfeiture on their part, or unless the plant has become a nuisance. (People v. O’Brien, 111 N. Y. 1; Roddy v. Brooklyn City & Newtown R. R. Co., 32 App. Div. 311, 314; Ingersoll v. Nassau Electric R. R. Co., 157 N. Y. 453, 463 ; Boyer v. Village of Little Falls, 5 App. Div. 1, 7.)

It is claimed that the privilege expired in 1900 by the terms of the contract. The plaintiffs did not become vested with the title to the plant until 1903, and it was then in operation with the acquiescence of the defendant. They equipped the plant, adding to it materially, and the claim was not then made that a renewal of the contract was essential to give validity to the privilege of keeping the poles and wires in the streets. The contract contemplated the extension of the franchise beyond the five-year period, unless the municipality elected to purchase the appliances. In a rather loose way, and yet with the approval of all parties, the plaintiffs have continued to avail themselves of their franchise from year to year without any formal renewal. Consequently, it is too late now for the defendant to make the omission to renew the agreement a ground for impeaching its validity, or to claim that the plaintiffs are in the streets tinlawfully.

Considerable evidence was introduced bearing upon the question of the operation of the plant. The' defendant claimed there had been substantial violations of the agreement, and the plaintiffs presented proof tending to show either that there were no alleged infractions, or that they were unimportant, or that they had been assented to. These facts were settled by the court below m favor of the plaintiffs and as a result this finding was made: “ That there has not been such want of care nor such failure to render efficient service as to constitute said poles, wires and system a nuisance, or so as to operate as a forfeiture of said franchise.” The judgment following the directions of the findings amply protects the defendant by this clause : The defendant may apply for modification of this injunction upon failure of plaintiffs to operate their said plant, and may thereupon urge a forfeiture of the franchise, if facts since the trial have arisen or hereafter shall arise, whereby the streets or public places of the village, or any of its inhabitants or their property, shall be exposed to danger of injury.”

The real animus of the attempt to remove the plaintiffs’ plant apparently is to get rid of a competitor to the new municipal lighting system. It may be desirable for the new plant to have all the business of the village, yet the plaintiffs are in the streets by warrant of the village authorities and have been many years operating their plant. The intention of the defendant to destroy their property unless removed within thirty days in order to be justified must be founded upon a manifest disregard of the agreement in important particulars, and the evidence presented does not call for so drastic and summary a remedy.

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  