New Hartford Water Co. v. Village Water Co.

Thayer, J. The fundamental claim of the plaintiff is that the defendant, which is a corporation created by the legislature under a special charter, is exceeding its rights under its charter, and that special damage, for- which the plaintiff has no adequate remedy at law, will result to it from the defendant’s ultra vires acts, threatened and in process of execution at the time a temporary injunction was granted in this action. In support of this claim it says, in effect, that it has the exclusive right under its charter to lay pipes in the streets and highways of New Hartford, and that this right could not be impaired by the legislature by the *189 grant of the right to the defendant to lay pipes in those streets and highways. The court properly ruled that the plaintiff has not the exclusive right claimed by it.' Its charter does not in express terms give it such exclusive right. The language is general, giving it the right to open the streets and highways of the two towns named therein for the purpose of laying its pipes. An intention on the part of the legislature to grant a private corporation the right to open and lay its pipes in any and all the streets and highways of two country towns, to the exclusion of all other persons and corporations, will not be presumed. The grant is to be most strictly construed against the grantee, and held to confer only such rights as are given in express terms or by clear implication. 4 Thompson on Corporations (1st Ed.) § 5399; State v. Towers, 71 Conn. 657, 666, 42 Atl. 1083; Northwestern Fertilizing Co. v. Hyde Park, 97 U. S. 659, 666. The cases cited by the plaintiff are those where an exclusive right was expressly given. In the present case the defendant’s predecessors were occupying the streets wherein the plaintiff’s pipes are laid, long before the latter was chartered, and had continued to maintain those pipes until the defendant was incorporated, as the latter has since, and through them has supplied a majority of the business blocks and buildings and many of the residences of the village. The plaintiff’s acquiescence in this occupation and use of the streets for this long period is a strong indication that the claim to an exclusive right on its part to lay pipes in the streets is of recent origin. As the plaintiff has not an exclusive right, the legislature could properly confer upon others the right to open the streets and lay water-pipes therein. Whether the defendant is exceeding its charter powers is a question to be raised only by its stockholders, or by the State, or by parties who receive some special *190 damage from the claimed ultra vires acts. New England R. Co. v. Central Ry. & Electric Co., 69 Conn. 47, 58, 59, 36 Atl. 1061; New Orleans, M. & T. R. Co. v. Ellerman, 105 U. S. 166, 173. The court has found that the defendant is proceeding with care to lay its pipes, that there was no evidence that any of its pipes would be laid over or under a pipe of the plaintiff, except where they might cross its line in four places, and that, in case of the removal or repair of one of the pipes at such places, while there is a possibility that some injury might be done to the other pipe, the possibility of injury to the plaintiff’s pipes is remote and immaterial. Manifestly it is only the possibility which is incident to the maintenance of pipes in the same street by different companies. Such possibilities must have been contemplated and assumed by the plaintiff when it accepted its charter. But the defendant’s charter gives it power to acquire land and water rights on Stone Brook, and to build, repair, and maintain such reservoirs as it may deem necessary for its purposes, and to open streets and lay down such pipes and conduits as shall be necessary to conduct and distribute water to the persons and places specified in the first section of the charter, that is, to those who had previously been supplied by distribution from the dry-well. The defendant’s acts in opening the streets for the purposes found by the court were within the powers thus conferred by the charter. . If, therefore, the plaintiff will be specially injured by the possibility of damage arising from the crossing of its pipes by those of the defendant, this presents no ground for the relief prayed for. Woodruff and two or three other persons on Steele Road, all of whom were members of the voluntary association of which the defendant is successor and are members of the defendant corporation, are supplied *191 with water by means of pipes connected with the main supply-pipe before it reaches the dry-well. They were being thus supplied at the time the defendant’s charter was granted. By the new arrangement, they are to be supplied directly from the dry-well. The plaintiff claims that in supplying these persons with water the defendant is exceeding its powers, for the reason that they are not persons to whom the charter gives it power to furnish water, and that the plaintiff is damaged by being thus deprived of possible customers. Strictly speaking, these parties were not supplied with water from the dry-well, and so not within the class to whom the defendant may supply water. But the dry-well was not a reservoir as the cobble-stone reservoir was which this replaced. It is simply a well from which, by means of a tee or otherwise, water was taken from the main supply-pipe by means of smaller ones through the different streets to the different takers. Tapping the supply-pipe a few feet above the dry-well, for the use of the parties on Steele Road, was substantially the same thing. It is not conceivable that the legislature should have intended to exclude these takers of the water, who are members of the defendant company, from the class to be thereafter supplied. No reason appears why this should have been intended. While the same rule applies in construing the defendant’s charter which we have applied in construing the plaintiff’s, we think it is clearly to be implied that the legislature did not intend to exclude these members of the corporation which it was creating from the class of persons for whose benefit it was created, that they are within that class, and that it was not a violation of its charter for the defendant to supply them with water. A Mrs. Bossi and another person, who are not members of the defendant corporation, are being supplied *192 by it with water in excess of its powers under its charter, as the plaintiff claims. These persons are the owners of places which were being supplied with water by the voluntary association when the defendant’s charter was granted, and so clearly fall within the class which the defendant can supply under its charter as the “successors and assigns” of those who at the time the charter was granted were being supplied at those places. The places being places which were' at that time being supplied, the defendant is within its charter rights in supplying water at those places. The court has found that the defendant has not done and does not propose to do any acts that have been or will be attended by any actual and serious damage to the plaintiff, or that interfere with it in the management or maintenance of its water system and charter rights. This finding precludes the plaintiff, for the reasons already stated, from attempting to question the validity of the defendant’s organization, or whether it has properly acquired the property and rights of the voluntary association named and recognized as such in its charter. This, and the view which we have taken of the defendant’s rights under its charter, renders it unnecessary to consider the numerous requests for changes in the finding, all of which relate to the questions thus precluded or removed by our construction of the charter, as also the rulings upon evidence assigned for error by the appeal, which only bear upon the same questions. There is no error. In this opinion the other judges concurred.