
    In the Matter of the Application of The Citizens’ Water Works Co., App’lt, v. David Parry et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 9, 1891.)
    
    1. Emiment domain—Water works companies.
    Before lands or water rights can be taken by a water works company by condemnation for the purposes of its incorporation in supplying a town or village and its inhabitants with water, there must be a contract with the. town or village authorities.
    2. Same.
    The petition alleged the due incorporation of the petitioner ; that the-lands were necessary for its use, but did not allege any contract with town or village authorities. The answer admitted that petitioner was duly incorporated, but denied that there was any contract, and petitioner has conceded that there was none. Feld, that there could be no presumption that, a contract had been entered into with the town authorities.
    Appeal from judgment in favor of defendants directed by the court.
    Proceeding to condemn certain rights in a stream claimed by defendants.
    
      Calvin Frost and C. E. Tracy, for app’lt; A. H. F. Seeger, for resp’ts.
   Pratt, J.

The petition sets out that the plaintiff is a duly incorporated company for the purpose of furnishing pure and wholesome water to the town of Highlands in Orange county. That it requires the land described in the petition for the purposes of the corporation, and that they cannot agree with the owners upon a price to be paid therefor. There are other allegations not necessary to be mentioned, but there is no allegation that the consent of the town or village was obtained before the filing of the articles of incorporation, as required by chap. 737 of the Laws of 1873, and no allegation that they have ever entered -into a contract with the authorities of any town or village to furnish water for hydrants for sanitary purposes.

The appellant claims that by the admission of the defendants that the appellant was duly incorporated, it must be presumed that-the consent required'under the act of 1873 was given, and that a contract express or implied was entered into as required by the-statute, to wit, chap. 415 of Laws of 1876, and chapters 422 and 423 of Laws of 1885; but the question whether a contract had been made was put in issue by the defendants, and it was conceded by the petitioner that no contract had been made.

There has been so much legislation upon this subject and the' acts have been so inartificially drawn that it is difficult to determine the legislative intent.

It may well be that the legislature intended to make a distinction between towns and villages, and the inhabitants thereof,, and between furnishing pure and wholesome water for the inhabitants and furnishing water for hydrants and sanitary purposes under a contract to be made with the authorities of such 'towns and villages.

Under the act of 1873, with the consent of the authorities, a corporation could be formed for the purposes of furnishing pure and wholesome water to individual inhabitants, but such corporation could not condemn land.

Merely furnishing water to inhabitants was in its nature a private enterprise, but when it comes to the question of furnishing water for public purposes, like hydrants, which must be paid for by taxation, the case is different and before condemnation proceedings can be instituted there must be a contract with the authorities.

It is to be noted that the first act that authorizes such a corporation to acquire land by condemnation was passed in 1876, chap. 415; that act expressly provides that there must be such, a contract and the same requirement is contained in chap. 422 of Laws of 1885.

I cannot see that the decision in the case of the Stamford Water Co. v. Stanley, 103 N. Y., 650, helps the appellant out of the difficulty.

It does not appear from the report of this case that the plaintiff had not made a contract with the authorities of the village, and, besides, the question there decided was that the act authorizing condemnation proceedings was constitutional.

I can find nothing in this case that authorizes a presumption that any contract has been entered into with the town authorities, as the contrary is proved.

The respondent had the right to insist before his lands were taken that the statutes in that regard should be strictly complied with.

The fact that in every one of the statutes that confer upon such corporations the right to condemn property there is a clause making a contract with public authorities a condition precedent to the exercise of such right, constrains me to hold that the legislature . intended to make a distinction between furnishing water to individuals and to the village and town for public use, which was to be paid for by taxation.

If these views are correct, the judgment must be affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.  