
    The Pocantico Water Works Co., Resp’t, v. Seth Bird et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 1, 1891.)
    
    1. Riparian owners—Effect of filing map by water works company.
    Plaintiff had, in 1886, filed a map showing the location of its dam and reservoir and the lands necessary to be taken, had entered into contracts with several villages to supply them with water, and had constructed a dam and reservoir a short distance above premises owned by one H. It had acquired the right to divert the waters of the stream from all the other riparian owners above and below the dam, and was proceeding with due diligence to acquire the rights of H. In 1888 it filed another map, showing the location of a storage reservoir below the main one, but not until defendants, with notice of plaintiff’s intentions, had filed their map locating their waterworks on the lands of H. Held, that as the statute under which plaintiff was incorporated empowered it to acquire such rights before filing its map, the rights acquired by such agreements were not impaired by the filing of defendant’s map, and it could enjoin them from erecting any reservoir above the place where it had located its storage reservoir.
    2. Same—“ Public use.”
    The fact that plaintiff had contracted with several of the riparian owners to supply them, their cattle, etc., with necessary water, did not destroy the public use any more than contracts made with the householders in the villages to be supplied.
    Appeal from a judgment of the general term of the supreme court, second department, affirming a judgment entered upon the decision of the Westchester special term.
    
      Henry C. Griffin, for app’lts; E. T. Lovatt, for resp’t.
    
      
       Modifying 22 St. Rep., 827.
    
   Haight, J.

This action was brought to restrain the defendants, who. were acting as the board of water commissioners of Tarrytown, from locating and constructing a dam and reservoir upon the premises of one George Hart on the Pocantico river at a point between the plaintiff’s dam and its contemplated storage reservoir.

The plaintiff was organized under chapter 737 of the Laws of 1873, as subsequently amended, and had entered into contracts with the villages of North Tarrytown, Dobbs Ferry and Hastings to supply them with pure and wholesome water. It ha.d located its works upon the Pocantico river, and had constructed a dam and reservoir a short distance above the premises owned by Hart, on which the defendants sought to locate their works. It had acquired by contract, purchase or proceedings to condemn the lands occupied by it, and the right to divert the water of the stream from most of the riparian owners below the dam, and, as the court finds, was proceeding with due diligence and in good faith to acquire the riparian rights of Hart; that the defendants, with actual notice- of all that the plaintiff had done to secure Hart’s rights in the stream, undertook to locate a dam and reservoir on Hart’s land, by which they proposed to take the waters of two of the tributaries of the Pocantico river to supply the village of Tarrytown with water, and on April 21, 1888, filed a map thereof and instituted proceedings to condemn for their use the riparian rights of Hart.

It further appears that on the 29th of May, 1886, the plaintiff caused to be filed in the office of the clerk of the county a map showing the location of the-dam and reservoir which have been constructed, and of the lands necessary to be taken therefor; that on April 9, 1888, at a meeting of the company, it was resolved that the maps prepared by the engineer of the company showing the location of lands required for the high service reservoir with the rights of way thereto, to be erected by the company on the Baylies property and also the storage reservoir located below the present one to be erected on Phelphs and Rice properties be adopted, and the president and secretary directed to sign the same and attach the corporate seal of the company thereto according to law, and cause the same to be filed in the county clerk’s office. The map so adopted and approved was filed in the office of the clerk on the 7th day of May, 1888, but not until after the defendants had filed their map.

It is quite apparent that it was not within the contemplation of the plaintiff at the time of the filing of its original map in 1886 to construct the high service reservoir or the storage reservoir. The dam and reservoir as it now exists with the property necessary to be taken therefor with the necessary pipe lines therefrom is all that was covered by that map. It is true that the lower riparian owners upon the stream were entitled to damages by reason of the diversion of the water of the stream at the plaintiff’s dam and reservoir. It was the duty of the plaintiff to settle with such owners for the damage so occasioned them, but we do not understand that this would deprive the defendant or any other company of the right to locate its works upon the same stream below the plaintiff’s works. The plaintiff by its dam and reservoir only could divert the water of the stream at that place. All of the overflow or surplus together with that which entered from tributaries below the dam would continue on down the natural bed of the stream, and this surplus was available for the use of other companies. But it is claimed on behalf of the plaintiff, that it had found it necessary to also appropriate this surplus as well as that coming to the river from the tributaries below the dam, and that this appropriation was finally determined upon at the meeting of the company on April 9th ; that in order to carry out the enterprise it had acquired the lands necessary for the new storage reservoir with the right to divert the water of the river thereat instead of the dam above, and that all" of the rights of the riparian owners between the company’s dam and its proposed storage reservoir-had'been acquired,-with the exception of that belonging to Hart, and that it was proceeding with due diligence to acquire his interests when the defendants, with full knowledge of the plaintiff’s purposes and plans, filed their map and instituted their proceedings to condemn. It is under these circumstances that the plaintiff seeks to enjoin the defendants.

As to the river below the plaintiff’s dam the defendants succeeded in filing 'its map before the plaintiff, but we do not regard this act as necessarily giving the defendants exclusive right to condemn and acquire the lower riparian rights in the river.

We are aware that in the case of The Rochester, Hornellsville & Lackawanna R. R. Co. v. The N. Y., L. E. & W. R. R. Co., 110 N. Y., 128; 16 St. Rep., 838, it was held that where a railroad corporation has made and filed a map and survey of the line of route it intends to adopt for the construction of its road, and has given the required notice, to all persons affected by such construction, and no change of route is made as the result of any proceeding by any land owner or occupant, it has thereby acquired a right to construct and operate its road upon such line exclusive in that respect as to all other roads or corporations.

But in the case of a railroad, the statute provides for the location of its route through the counties which it has to pass, and such location is made known by the map and survey which it places on fila. The statute, then, within a specified time, gives to-the persons interested the right to institute proceedings to change the location. If this is not done, the road becomes located at the place indicated upon the map filed, and the company is thus given the exclusive right to construct and operate its road upon such line. But no such provision is embraced in the statute giving to water works companies the right to locate their dam. or reservoir.

The provisions of that act as amended by chapter 415 of the Laws of 1876, provides that after the company shall have fully completed its organization and shall have made a contract with any town or village as provided in the act to supply the same with pure and wholesome water, the company and its agents and employes shall be authorized to enter upon any land or water for the purpose of making surveys and to agree with the owner of the property, which may be required for the purposes of the act, as to the amount of compensation to be paid, such owner; but before entering, taking or using any land for such purposes, the company shall cause a survey and map to be made of the lands intended to be taken or entered upon, on which the land of each owner or occupant shall be designated, which map shall be signed, by the president of the company and its secretary, and filed in the office of the county clerk.

It will be observed that under the provisions of this statute the map is to be filed before the company enters upon the land for the purpose of using it But it may enter upon the lands for the purpose of making surveys and acquiring title by agreement with the owner, before such map is filed; and that is what it appears had. been done by the plaintiff in this case.

Phelphs granted unto the plaintiff “the full right and privilege to forever divert the waters of the Pocantico river from my premises situate, lying and being in the town of. Mt. Pleasant, county of Westchester and state of New York, and use the same for all its purposes.”

Beatty granted unto the plaintiff, “its successors or assigns, the full right and privilege to forever divert the waters of the Pocantico river from my premises in said town, county and state, and use the same for all its purposes.”

Harriet Horton granted “ all my riparian rights in and to said Pocantico river, and hereby sell and assign the same riparian rights to said Pocantico Water Works Company, for myself, heirs, executors, administrators and assigns.”

Carle granted to the plaintiff, “its successors or assigns,.the full right and privilege to forever divert the waters of Pocantico river from my premises situate, lying and being in the town of Mt. Pleasant, county of Westchester and state of New York, and use the same for all its purposes.”

Rockefeller granted unto the plaintiff “ all my right, title and interest and claim of, in and to the" water of the Pocantico river and release all damages for the diversion thereof on or along my premises by said company for the purposes for which it was chartered.”

Rice conveyed lands to the plaintiff which embraced the bed of the stream and carried with it the riparian rights of the grantor.

Other lands were acquired by purchase and proceedings to condemn which we do not deem it necessary to mention in detail.

We have called attention to the lands lying between the company’s dam and its proposed storage reservoir, all of which had been acquired by the plaintiff,, with the exception of Hart’s, prior to the time that the defendants filed their map, and in each grant the right was given to the plaintiff to divert the water running in the stream at the premises. This would include all of the overflow from the company’s dam, as well as all of the water which should enter the stream from the tributaries below the dam and above thp premises so acquired.

Hart's property is located upon the river above the premises mentioned as having been acquired by the plaintiff. If the defendants are permitted to locate their dam and reservoir upon the Hart property it will cut off the water which otherwise would naturally flow through the river. They would consequently have to acquire from the plaintiff its rights to the water flowing through the premises mentioned. This they claim the right to do by proceedings to condemn and for that purpose their map was filed.

In view of the fact that the statute gave to the plaintiff the right to acquire land and water rights by agreement with the owners before filing its map, we do not think that its rights acquired by such agreements were impaired by reason of the filing of defendants’ map.

It is claimed, however, that these rights acquired by the plaintiff, were not for the public use, had not been so devoted, and that they were not necessary for the purposes of its incorporation.

The term “ public use ” as used in connection with the right of eminent domain is not so easily defined. The legislature has no power to take the property of one individual and- pass it over to another, unless the use to which it is to be applied is for the public benefit. 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 rise to be made, thereof is for the benefit of the public. It has consequently been held that railroads, canals, turnpikes, ferries, sewers, gas and water companies are for a public use, and the legislature may give them the right to take the real estate necessary for their use under the right of eminent domain. 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. Lewis on Eminent Domain, chap. 7; Olmsted v. The Proprietors of the Morris Aqueduct, 46 N. J. Law., 495; Inhabitants of Wayland v. The County Commissioners of Middlesex, 4 Gray, 500; St. Helena Water Company v. Forbes, 62 California, 182; In the Matter of the Application of the New Rochelle Water Company, 46 Hun, 525; 12 St. Rep., 646; The Stamford Water Company v. Stanley, 39 Hun, 424.

The statute under which the plaintiff was incorporated gives the right of eminent domain after the completion of the organization of the company and its contract with the town or village to supply the inhabitants thereof with pure and wholesome water. The contract does not of itself make the use public, but it does impose upon the ¡jlaintiff a duty to supply the villages- with whom the contract was made with water. It being with villages in which the inhabitants thereof have the right to its common use, it becomes public within the rule uniformly recognized by the courts.

But it is said that the plaintiff has entered into contracts with Rockefeller, Horton, Legate and others, persons of whom the plaintiff has secured its water rights, to supply them, their cattle, etc., with necessary water. Very true. It also may engage with every householder in the village of North Tarrytown to supply them with water. This would not destroy the public use. It would rather tend to show use by many, and thus establish that the use was for the public benefit. With the persons named there are special contracts, but those contracts were made for the purpose of securing their riparian rights.

It is true that the rights of the plaintiff acquired below its dam have not as yet been devoted to a public use, but at the time this action was commenced it had not had time to complete the structures necessary therefor; that it was proceeding in good faith and .with due diligence was a fact found by the trial court.

The property mus't be necessary for the purposes of the incorporation. This fact has also been found by the trial court, and when we take into consideration that the inhabitants of three villages are dependent upon the supply which the plaintiff is able to furnish, our changeable seasons and the liability to long droughts, we are not disposed to interfere with such finding, but rather to adopt the language in the case of Olmsted v. The Proprietors of the Morris Aqueduct, 47 N. J. Law, 311; “It is impossible to estimate with precision the quantity of water that will be needed to supply the wants of a population of * * * Nor can it be computed with accuracy what the supply of water will be from the district hitherto relied upon. In a matter of such extreme necessity, all contingencies must be provided for, and the supply should be so ample that a lack of water could not be reasonably apprehended. A supply to that extent is necessary to enable the company to perform its duty to its consumers.”

We do not deem discussion necessary as to the other questions raised.

The judgment should be modified so as to only enjoin the defendants from constructing, erecting or maintaining any dam or reservoir upon the Pocantico river above the point where the plaintiff has located its storage reservoir, and as so modified the judgment should be affirmed, with costs.

All concur.  