
    Queens County Water Company, Appellant, v. John H. O’Brien, Commissioner of Water Supply, Gas and Electricity, and Others, Respondents.
    Second Department,
    March 5, 1909.
    Eminent domain — condemnation of land for additional water supply — approval of plans by State board essential— “ source ” defined — demurrer — other action pending — proceeding and special proceeding defined — condemnation proceedings no bar to taxpayer’s action.
    By virtue of section 2 of chapter 723 of the Laws of 1905 a municipal corporation or other civil division of the State cannot take or condemn lands for any “new or additional sources of water supply.” until it has submitted maps and profiles thereof to the State Water Commission and obtained its approval.
    The word “sources” as used in said section while broad enough to include a lake, stream or pond, or any well-defined watershed from which percolating waters may be taken, does not include a whole territory from some part of which a municipality has taken a portion of its water supply. ■
    Hence, a taxpayer may maintain an action to restrain a municipal commissioner of water supply from taking its lands where no map and profile has been submitted to and approved by the State Water Commission, and that approval cannot he dispensed with on the theory that prior to the passage of said act the city had already acquired other specific water rights within the same general territory. As “new and additional” sources of supply are contemplated, the approval of the State Commission is essential.
    As' a “ liroceeding ” may he any sort of a transaction, it is not equivalent in meaning to a “special proceeding” which implies a legal controversy other than aii action.
    
      Hence, a demurrer to a complaint on the ground that there appears upon its face that there is a “ proceeding other than this action pending between the same parties for the same cause ” is bad.
    Moreover, the fact that a taxpayer, suing to restrain the condemnation of its lands for a municipal water supply upon the ground that the plans have not been approved by the State Commission, was itself a party to the condemnation proceeding, does not bar the action upon the theory that there is another proceeding pending between the same parties for the same cause. This, because while the plaintiff in its private capacity might contest the condemns- • tion proceeding upon the ground that the plans had not been approved, it is not deprived of its right to sue as a taxpayer for the henefit of the .community. ■ Moreover, the condemnation proceeding is not another action pending between the same parties so as to furnish a ground for demurrer, under section 488 of the Code of Civil Procedure.
    Appeals by the plaintiff, the Queens County Water Company, from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk-of the'county of Nassau on the 12th day of December, 1908, denying the plaintiff’s motion for an injunction pendente lite, and from a judgment of the Supreme Court in favor of the -defendants, entered in said clerk’s office on the 16th day of December, 1908, upon the decision of the court, rendered after'a trial at the Nassau Special Term, dismissing the complaint. \
    - Also motion by the defendants, John H. O’Lrien, Commissioner, etc., and others, to dismiss the plaintiff’s appeal. \
    
      Henry De Forest Baldwin, for the appellant.
    
      Edward H. Wilson [James D. Bell and Francis K, Pendleton with him on the brief], for the respondents.
   Woodward, J.:

The plaintiff, in its capacity as a taxpayer, brings this \ action to restrain the defendants from taking certain lands and water rights, comprising a strip of land about nine miles long and about Wo hundred feet wide, extending from Clear Stream to Massapequa i^i Nassau county, on the ground that such taking would constitute aji illegal act on the part of the defendants, in that they have nob secured the approval of the State Water-Supply Commission as required by chapter 723 of the Laws of 1905. Other objections are urgeid, going to the private rights of the corporation, but it does not appear to be necessary to enter into their' discussion on this appeal. The defendants demurred to the complaint, on the ground that “ it appears upon the face thereof that there is a proceeding other than this action pending between the same parties for the same cause.” The learned court at Special Term overruled the demurrer, but dismissed the complaint on the ground that it did not state facts sufficient to constitute a cause of action. A motion was made in the action for an order of injunction, which motion was denied, and the plaintiff appeals from this order, and there is likewise a motion pending before this court to dismiss the appeal, it being urged on the part of the defendants that as the city of New York has become invested with the title to the real estate under the provisions of the Greater New York charter, it is not competent for the plaintiff to.question the right to pay for the same. The respondents question the ground of decision on the part of the learned court at Special Term, and concede that the complaint does state a cause of action, but insist that the demurrer was well taken, and that the judgment dismissing the complaint, though granted upon a wrong theory, should be modified and placed upon the ground stated in the demurrer, and, as thus modified, affirmed.

The learned court, in holding that the complaint did not state a cause of action, construed section 2 of chapter 723 of the Laws of , 1905, and held that it had no application to this strip of land, nine . miles in length and two hundred feet wide, which the defendants are seeking to acquire for the city of New York as a part of its water works system. The section provides that “No municipal corporation or other civil division of the State, and no board, commission or other body of or for any such municipal corporation or other civil division of the State shall, after this act takes effect, have any power to acquire, take or condemn lands for any new or additional sources of water supply, until it has first submitted the maps and profiles therefor to said commission, as hereinafter provided, and until said commission shall have approved the same.” It is conceded that the commission has not approved of the_ maps and profiles in connection with the land to be taken by the defendants, but the learned court in disposing of the case points out that the city of New York has for many years been maintaining a “ compíete water system consisting of conduits extending from the Kings County line at Ridgewood, to a point near the SuEolk 'County line at Amityville,” in the county of Nassau, “and as tributary to these conduits the city has acquired many ponds, reservoirs, rights along streams and other appurtenances to a complete water system,” and says: “ The lands which are proposed to be acquired in the proceeding sought to be enjpined are within the territory above described from which the city, long prior to the enactment of chapter 723 of the Law® of 1905, lias, derived its water supply. This, being so, the power of the city to acquire these lands is not limited by section 2 of that act, and the city may condemn them without first obtaining-the approval of the State Water Supply Commission.” • In support ef this broad construction, the court says that the “ word 1 sources ’ has a geographical significance, and- in that sense means the area or territory which contains -the watershed or watersheds of the natural bodies of water, whether lakes, rivers or subterranean streams from which the water supply is derived.” ■ We find no warrant in the statute, or in the ordinary use of language, for this -construction of the word “ sources.” Webster defines the word “ source ” — apart from an obsolete usp — “ The rising from the ground, or beginning, of a stream of water or the like; a spring ; a fountain. That from which anything conies forth,-regarded as its cause or origin ; the person from whom anything originates; first cause.” In a-like 'manner the American and English Encyclopedia of Law- (Vol. 25 (2d ed.], p. 1160) says: “ The term11 source ’ is defined as the spring -or fountain from which a stream of. water proceeds, or. any collection of water within the earth or upon its surface: in whiqh- a stream originates.” Undoubtedly the language of the statute is to be construed broadly enough to refer to a lake, a stream or a pond as a source: of supply, or to any well-defined watershed from which the percolating waters might be taken, but to say that, a whole territory, in which the city of New York has incidentally procured some part of its water supply, is dedicated to the uses of the city in such a manner ' as to take it out of the operation of a statute designed to regulate the taking or condemning of lands “for any new or additional sources -of water supply ” is going a long way. The limitation of the statute is upon ¡“new or additional sources,” and “additional sources” are sources which have not been appropriated at the time of the statute, and do not relate to a general territory from which the city may have taken some part of the water. If we are right in this view, and it seems to us entirely obvious that the Legislature intended giving the right to condemn additional sources only in subordination to the control of the State Water Supply Commission, it follows that this was a necessary condition to the legal taking of the lands of the plaintiff or of any other party, and that the complaint did state a good cause of action, under the provisions of law permitting a taxpayer to bring into question the legality of the acts of public officials in expending the public revenues.

This brings us, therefore, to the consideration of the demurrer interposed by the defendants. Section 518 of the Code of Civil Procedure says : “ This chapter prescribes the form of pleadings in an action * * * except where special provision is otherwise made by law,” and section 3333 says that the “ word ‘ action,’ as used in the Hew Revision of the Statutes, when applied to judicial proceedings, signifies an ordinary prosecution, in a court of justice, by a party against another party, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence,” and the next section provides that, “ Every other prosecution by a party, for either of the purposes specified in the last section, is a special proceeding; ” so when we are considering any questions arising under the provisions of chapter 6 of the Code of Civil Procedure, we are dealing with actions, as defined by the Code, and not with special proceedings. Section 488 provides that tile “ defendant may demur to the complaint, where one or more of the following objections thereto appear upon the face thereof,” and among these objections is the one that there is another “ action pending between the same parties, for the same cause.” This language, the meaning of which is defined by the statute itself, does not permit of 'a demurrer on the ground stated by the defendants, that “it appears upon the face thereof that there is a proceeding other than this action pending between the same parties for the same cause.” A proceeding is not an “ action ” as that word is used in the Code of Civil Procedure. Indeed, no such thing as “-a proceeding” is known to the Code of Civil Pro-, cednre; there is a “ special proceeding,” and a “ special proceeding ” would imply that there was a legal controversy existing between the parties as to the same cause, but a proceeding” is defined by Webster as the “act of one who proceeds, or who prosecutes a design of transaction; progress or movement from one thing to another; a measure or step taken in a course of business; a transaction,” etc., so that the declaration of the demurring defendants that ■ “ there is a proceeding other than this action pending between the same parties for the same cause,” presents no possible question of law, for the proceeding might n'o.t be anything more than a negotiation between the parties in reference to the same matter. But apart from the exact"language of the demurrer, the fact that the Queens County Water Company was a party to a condemnation proceeding, in- which its private rights were involved, does not "necessarily involve the issue of law involved in a statutory action brought by the Queens County Water Company in its capacity of a taxpayer. It might, in the condemnation proceeding,. waive the question of the legality of the steps taken, without in any manner surrendering its right, as a taxpayer, to bring the matter before the courts. The statute gives this right, not to protect the Queens County Water Company from the power of the defendants to take its property under the power of eminent domain, but to protect the taxpayers of the community from the illegal acts of public officials, and while the Queens County Water Company might raise the question in its contest over the condemnation of its property, it is not bound to do so, and it is not deprived of its right,'as a taxpayer, to bring this action because it may, in its private capacity, have raised the question in a special proceeding. The statute gives a right ' to demur only when there is “ another action pending between the same parties, for the same cause,” and there is not only no “ action ” pending between the same parties, but the cause of action here asserted, under the statute, is a different cause from the one which the Queens County Water Company is bound to assert in the condemnation proceeding; it is a cause of action in which every taxpayer has an interest, a,nd one which the statute gives for the protection - of the taxpayer as such, which is quite distinct from the mére defensive right of a corporation to assert the illegality of acts which seek to invade its property rights.

It follows, therefore, that the motion to dismiss the appeal should be denied, that the judgment and order appealed from should be reversed, and that the preliminary injunction asked for should be granted.

Hirschberg, P. J., Jenks, Rich and Miller, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs. Order reversed, with ten dollars costs and disbursements. Settle orders before Mr. Justice Woodward.

Motion to dismiss appeal denied, with ten dollars costs. 
      
      
         This section was amended by chapter 415 of the Laws of 1906.— [Rep.
     