
    In the Matter of the Application of the New Rochelle Water Company, for the Appointment of Commissioners to Ascertain Compensation to Land Owners and for an Order of Condemnation.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 13, 1887.)
    
    
      1. Water companies—Condemnation oe land—Chap. 415, Laws 1876, chap. 214, Laws 1881, constitutional.
    The New Rochelle Water Company petitioned the supreme court to acquire certain lands. The application was opposed by two persons whose property and rights the company sought to acquire. The court decided that the applicant was entitled to an order appointing commissioners. Deld, chapter 415, Laws 1876, and chapter 213, Laws 1881, are constitutional, and the legislative power under which these proceedings are taken is ample.
    2. Same—Constitutional power op legislature.
    Where the use is a public one it is within the constitutional power of the legislature to authorize by general laws the formation of an indefinite number of corporations with power to take by condemnation of the lands necessary for the public use on compensation being made.
    On the 27th day of January, 1887, the New Rochelle Water Company applied to the special term of this court in Westchester county for an order condemning certain lands in that county specified on a conduit line map. Henry Oook and William G-. Seacor are owners of two parcels of such land and refused to sell to the company. The petitioning corporation was formed under the act of the legislature, of this state, entitled “An Act in relation to formation of Water Works Companies in Towns and Villages in the State of New York,” known as chapter 737 of the Laws of 1873, and the amendatory and supplemental acts, to supply the village of New Rochelle with water.
    At the hearing, testimony was given for and against the allegations, and the counsel for said Cook and Seacor moved to dismiss the petition and proceeding, on the ground that such acts were unconstitutional, so far as they authorized the taking of land without consent of the owners. The court denied the motion and decided that the applicant was entitled to the appointment of commissioners. Counsel excepted and Seacor and Cook appealed.
    
      Joseph D. Fay, for app’lts; Martin J. Keogh, for resp’t.
   Barnard, P. J.

The legislature by a general act authorized the formation of a company to furnish pure and wholesome water to the towns and villages of the state. Chapter 737, Laws of 1873, page 1100.

This act did not contemplate that land and water rights for this complete purpose should be acquired, except by purchase from the owners. By chapter 415, Laws of 1876, t,he right to acquire lands by condemnation is given for the purposes of the pubEc use. The same right is again given by chapter 213, Laws of 1881, and the purposes for which water might be furnished are increased. The legislative power under which these proceedings are taken is ample. The laws are constitutional. Water may be taken for the public use, and even in a case when a legislative act authorized the taking of water by a village for public and private use, it was held by the court of appeals that it must be so construed as to mean that the private use was only incidental to the public use and involved in it. Chapter 347, Laws of 1866; Matter of Middletown, 82 N. Y., 196.

When the use is a public one it is within the constitutional power of the legislature to authorize, by general law, the formation of an indefinite number of corporations with power to take by condemnation of the lands necessary for the pubEc use on compensation being made. Buffalo, etc., R. R. v. Brainard, 9 N. Y., 100.

The order should be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.  