
    William Ziegler, Resp’t, v. Alfred C. Chapin et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 9, 1891.)
    
    Eminent domain—Right to acquire water rights by agreement— Laws 1886, chap. 335.
    By Laws 1886, chap. 335, the city of Brooklyn was authorized to acquire the rights of a wa’er company in the town of New Lots by purchase, and if an agreement could not ba made, then such rights could be acquired by the right of eminent domain within two years, to be held subject to certain mortgages. No proceedings were taken within the said two years, but thereafter an- agreement for the purchase of such rights was entered into. Held, that the power to buy expired with the limitation of two years during which the city had the right to take title by eminent domain.
    Appeal from order restraining defendants, as officers of the city of Brooklyn, from purchasing the property and franchises of the Long Island Water Supply Company for the city of Brooklyn for $1,250,000. The property is located in the twenty-sixth ward, formerly the town of New Lots.
    
      A. F. Jenks and T. E. Pearsall, for app’lts; W. J. Gaynor, for resp’t.
   Barnard, P. J.

The legislature, by chap. 335, Laws of 1886, annexed New Lots, one of the towns of Kings county, to the city •of Brooklyn. There was a water company in the town of New Lots incorporated under the general law of the state for the purpose of furnishing pure and wholesome water to the authorities and inhabitants of the town. By the annexation act the city assumed the payment of the contract price of the water to be furnished the town under an existing contract. The city was by the act of annexation prohibited from distributing water within the limits of the town until the charter of the water company expired. By the 5th section of the act it was provided as follows:

The mayor, comptroller and auditor of the city of Brooklyn are hereby authorized for and in the name of the city of Brooklyn to purchase the reservoir, well, machinery, pipes, franchises and all other property of said company when and at such price as may be agreed upon by said officers and by the said company, by its board of directors, who are hereby authorized to sell and convey the same to said city, and in case said parties shall be unable to agree upon a price for the purchase and sale of the said property of the said company, then in that case the power to acquire said property, and franchises by the right of eminent domain is hereby expressly delegated to said city of Brooklyn, and the said officers, in the name of, and for said city, within two years hereafter, may proceed to acquire and may acquire all such property by proceedings such as are required for the acquiring of. additional land for railway purposes, by corporations formed under the provisions of chapter 140 of the Laws of 1850. And all such property when thus purchased or acquired shall thereupon become and be a part of the water supply property of said city, but it shall be held subject to two mortgages now on said property, each made to secure the sum of $250,000 and interest.

Mo agreement was made for the purchase of the property within the two years after the passage of the act, and no proceedings were taken within that time to acquire the title to the property rights of the water company within two years after the passage of the annexation act. The mayor, comptroller and auditor have now agreed with the board of directors of the water' company upon a price for the water company’s property.

We think that the power of these officers to buy expired with the limitation of two years during which périod the city had the right to take title by eminent domain. This reading would be in accord with the general course of legislation. The general railroad act provides for an attempt to agree with the owner, and in case of failure to agree that a condemnation can be had, and all condemnations since which have been authorized by the legislature have, so far as possible, been based on this general railroad act. This very section is based upon the general railroad act. If there had been no limitation of the power to condemn, the power to buy would have been continuous and accompanied by a continuous power to condemn. To hold that the power to agree upon a price continued after the power to condemn had expired would subject the city of Brooklyn to perhaps an exorbitant price for the property, as there would be no method by which a disinterested tribunal could be appointed with power to establish a price as between the parties to the purchase. The power to agree upon a price whenever given is expressly followed by the right to condemn, and that is limited by time. Both must fall together. We are strengthened in this view by chapter 583, Laws of 1888. By this act all local and special laws were combined, and a complete system of condemnation of lands and rights for its water supply was given to the city. The commissioners of city works could, with the consent of the common council, buy lands for the purpose, and in case of a failure to agree the right to condemn was given. It is true that the consolidation act was saved by express words from repeal, but that act must necessarily stand as long as the town rights of New Lots were protected by it. There was no intent by saving the consolidation act to retain provisions in it which had become inoperative by lapse of time and that the legislature deemed §5 of the consolidation act as without further force is seen from the substitution of a power to take by condemnation the lands as part of the general city system.

The order should, therefore, be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.  