Rochester & Lake Ontario Water Co. v. City of Rochester

Haight, J. This action was brought to restrain the city of Rochester, its officers, agents and servants, from interfering with, or preventing the plaintiff from, laying its water pipes or mains across certain streets of the city. The plaintiff is a domestic corporation organized under the Transportation Corporations Law, chapter 566, Laws of 1890, as amended by chapter 617, Laws of 1892, for the purpose of supplying water to the villages of Brighton and Fairport and the towns of Greece, Gates and Brighton, in the county of Monroe. The trustees of the villages and the officers of the towns have, under due form of law, executed in writing permits, authorizing the formation of the plaintiff as a corporation, for the purpose of supplying their respective villages and towns with water, which were duly acknowdedged and annexed to the certificate of incorporation and filed therewith. The plaintiff, after perfecting its organization and paying the charge therefor imposed by the statute, determined to take its supply of water from Lake Ontario at a point near Rigney’s Bluff westerly from the point at which the Genesee river empties into the lake, and to lay its pipes therefrom southerly through the towns of Greece and Gates to the city of Rochester, arid thence through the city to the town of Brighton, and so on easterly to the village of Fairport. It caused a map to be made of the lands intended *42 to be taken or entered upon in the route which it had adopted, duly signed by the officers of the company and filed in the office of the clerk of the county, as required by section 83 of the Transportation Corporations Law. It then procured its right of way through the towns of Greece and Gates to the city of Bochester, and entered into a contract with the Hew York Central & Hudson Biver Bailroad Company by which it was given the right to lay its mains upon the company’s right of way, through the city of Bochester and the town of Brighton to the village of Fairport. It entered into a contract with another corporation to construct its plant and lay its pipes, and has made agreements to .sup ply water to a number of manufacturing .establishments, including railroad repair shops, in the towns outside of the city of Bochester, and to supply the Hew York Central & Hudson Biver Bailroad Company with the water that it required in the city of Bochester, and at its stations east between the city and Fairport. After which it commenced the laying of its pipes and undertook to dig trenches therefor across one or more of the streets of the city upon the right of way of the railroad company, and was prevented from so doing by the officers of the city, acting through its police department, and thereupon this action was brought to restrain such interference. The trial court has found as a fact that there was a legitimate demand for water in the towns and villages specified; and that it was necessary for the plaintiff, in order to carry out the purposes of its incorporation and to fulfill the contracts which it had made and assumed, to lay its water mains along the route which it had adopted through the city of Bochester; and that it had acquired an easement to cross the intersecting streets. At the request of the defendant the court found, “ That, it is a physical possibility to carry water from Lake Ontario to the towns of Greece and Gates on the south and west of Bochester, and to the town of Brighton and the villages of Brighton and Fairport on the east of Bochester, without laying any pipes within any portion of the territory of the city of Bochester, but that to supply the said territory east of *43 Rochester would require pipes to be laid through the town of Irondequoit, in which the plaintiff has neither sought nor obtained any permit from the local authorities, and has acquired no right of way, and the cost of such construction would be materially greater.” The town of ■ Greece lies between the lake and the city of Rochester. The town of Gates is west of the city, and that of Brighton is east of the city. It, there-' fore, is necessary in laying a main from the town of Gates to the town of Brighton and to the villages on the east of the city, to pass through the city of Rochester, or to go around the city through the town of Irondequoit which would involve the laying of the pipes for a much greater distance, and consequently cause a considerable increase in the cost of the construction. Section eighty-two of the statute under which the plaintiff was incorporated provides as follows: “ Every such corporation shall have the following additional powers: “ 1. To lay and maintain their pipes and hydrants for delivering and distributing water in any street, highway or public place of any city, town or village in which it has obtained the permit required by section eighty of this article. “ 2. To lay their water pipes in any streets or avenues or public places of an adjoining city, town or village, to the city, town or village where such permit has been obtained. “ 3. To cause such examinations and surveys for its proposed water works to be made as may be necessary to determine the proper location thereof, and for such purpose by its officers, agents or servants to enter upon any lands or waters in the city, town or village where organized, or, in any adjoining city,. town or village for the purpose of making such examinations or surveys, subject to liability for all damages done.” The first subdivision of this statute gives to water companies the light to lay and maintain their pipes and hydrants in any street, highway or public place of the city, town or village in which it has obtained a permit to supply its inhabitants with water. The second subdivision gives a like power to the *44 company as to its pipes in an adjoining city, town or village. It is upon this latter subdivision of the statute that the plaintiff bases its claim of right to run its pipes through the city of Rochester. The city, as we have seen, adjoins the. town of Gates on the west and the town of Brighton on the east. It owns and operates a municipal water plant, by which it supplies itself and its inhabitants with water. It also has for many years supplied the Hew York Central & Hudson River Railroad Company with water within the city at an annual rental of from $18,000 to $20,000 per year. The city, therefore, does not require water from the plaintiff corporation, and objects to its occupying any portion of the streets with its pipes. The purpose of this provision of the statute is manifest. The legislature did not propose that one municipality, which happened to be more favorably situated, should have the power to prevent another and adjoining municipality from obtaining water, where it becomes necessary to pass through the territory of such adjoining municipality to reach the source of supply. This was settled in the case of Village of Pelham Manor v. New Rochelle Water Company (143 N. Y. 532), in which case the court went to the extent of holding that a water company had the right to lay its water pipes in the streets of an adjoining town or village, whenever it was necessary to effectually and properly execute the purpose for which it was created, even though the point in the adjoining town where the pipes were laid did not intervene between the source of supply and the place of distribution. A vigorous assault has been made by the counsel for the appellant upon the wisdom of this statute. While we have no power to review the legislative discretion, it may not be out of place to here make some suggestion with reference to this particular provision. We fully recognize the justice of the provision which permits the laying of water pipes through an adjoining municipality, and thus preventing such municipality from .depriving its neighbors from receiving a supply of water, where such municipality happens to intervene between the source of supply and the place of distribution. *45 This power, as it was originally granted, was limited to towns and villages, but under the provision of chapter 617 of the Laws of 1892, the right to lay pipes through the streets, avenues and public places, was extended to cities. This provision was adopted doubtless for the reason that it was found that the compelling of a water company to lay its mains around the territory of a city many miles in extent, might involve such expense as to operate as a practical prohibition to the supplying of water to villages which happen to be situated so that the city intervenes between them and the source of water supply. We think, however, that the legislature might properly have placed some restriction upon the use of the streets in cities, and possibly in villages, that should be made by water companies; that the city or village authorities should be given some voice as to the streets that should be used, and the place and manner in which the pipes should be laid therein; and that it should not be left entirely to the judgment and discretion of the officers of the water company to place its pipes wherever they please, without regard to the wishes or reasons of the officers of the city who may desire to have them placed elsewhere. There is, however, no complaint with reference to the location of the company’s line in this case, provided it has the right to lay its pipes through the city. The line selected upon the right of way of the New York Central & Hudson River Railroad Company relieves the city from having the pipes laid lengthwise through its streets, for it only crosses the streets that are crossed by the railroad tracks. The trial court has awarded judgment to the effect that the plaintiff has acquired the right to lay and maintain its water mains through the city of Rochester upon the strip of land owned by the New York Central & Hudson River Railroad Company; and that the city, its officers, agents and servants, be enjoined from interfering with the plaintiff in laying its water mains across the streets of the city. In awarding such judgment the court has very properly imposed certain conditions upon the plaintiff, regulating the manner *46 in which it should, do its work; providing for the guarding of trenches ; the restoring of pavements and streets in which trenches have been dug; to save the city harmless from liability, and to give the commissioner of public works of the city twenty-four hours’ notice before commencing the work of excavating in any of the streets. The representatives of the city have not suggested that further restrictions should be imposed, and, indeed, we do not understand them as complaining of the judgment, except in so far as- it holds that the plaintiff has acquired the right to lay its pipes into or through the territory of the city. We are thus brought to a consideration of the defenses interposed by the defendant. The city in its answer has set out section forty of its charter, as finally amended by chapter twenty-eight of the Laws of 1894, which gives the common council of the city the power to enact ordinances for the following purposes: “To regulate and prevent the use and encumbering of streets; * * * ’ to regulate the opening of street surfaces and connections with sewers, and the laying of gas, water pipes and mains and sewer connections.” It further alleges that on or about the lltli day of Hay, 1897,' the common council of the city duly enacted an ordinance relating to streets, which contained the following : “ Section 1. Ho person shall injure any pavement, sidewalk, crosswalk or sewer, nor dig any area, sewer, lateral sewer or other excavation in any public street, nor remove any earth or stone therefrom, within the city of Rochester, without permission in writing from the executive board, and under such conditions as said board may impose, and the executive board may order any sewer or excavation constructed contrary to the provisions of this section tobe filled up or altered at the expense of the owner.” Further provisions of the ordinances make a violation punishable by a fine not exceeding $150, or to imprisonment not exceeding one hundred and fifty days, or to both such fine and imprisonment. The answer further alleges that the city of Rochester is a city of the second class, and that under section 483 of chapter 182 of the Laws of *47 189S, entitled “ An act for the government of cities of the second class,” it is provided that “ nothing contained in this act should be construed to repeal any statute of the state or ordinance of the city, * * * not inconsistent with the provisions of this act.” It is also alleged that by section 109 of the latter act the commissioner of public works “ has cognizance, direction and control of the construction, alteration, repair, care, paving, flagging, lighting and inrproving streets, ways and sidewalks ; ” that under section 142 of the act the commissioner of public works lias the jurisdiction of commissioners of highways in towns ; and under section 110 he is required to appoint a superintendent of water works, to see that the city has an abundant supply of wholesome water for public and private use. To our minds the provision of the charter of the city of Rochester, giving to the common council the power to enact ordinances upon various subjects, does not affect the questions involved in this case. The common council has enacted an ordinance to regulate and prevent the use and incumbering of streets. This undoubtedly has reference to the use and incumbering of streets upon the surface, and not especially to the use made of the soil underneath the street. That was doubtless left to the other provision which regulates the opening of street surfaces for the laying of gas and water pipes, and the making of sewer connections. This ordinance was doubtless framed to regulate the laying of the water mains of the city’s plant and the connections to be made therewith by the abutting owners on the streets. It is claimed that it had reference to the water mains of water companies organized under the statute to which we have called attention; but the ordinance was adopted Hay 11th, 1897, after the passage of the Transportation Corporations Law. To give it the force claimed would necessitate the holding that it was the intention of the legislature to vest in the common council of the city of Rochester the power by ordinance to repeal or amend a general statute of the state. This certainly could not have been intended, for the power delegated to enact ordinances has *48 always been limited to such as were not in conflict with existing laws ; so that if the ordinance is to be construed as a prohibition against making any excavations in a public street for the purpose of laying water pipes by the plaintiff herein then it is in conflict with the provisions of the general statute to which we have referred, which expressly gives such power in adjoining municipalities. As to the provisions of the charter of cities of the second class, which continue in force statutes and ordinances which are not inconsistent with its provisions, they relate to those ordinances which are valid and are not in conflict with existing statutes. While the commissioner of public works is given the power of commissioners of highways and the power to appoint a superintendent of water works whose duty it is to see that the city is supplied with wholesome water for public and private use, we do not understand that it gives him any power to prohibit the laying of pipes under general laws or control over the water of the plaintiff corporation so long as it is only passing through the city in the mains of the company for use elsewhere. If an attempt is made to distribute the water within the city then the superintendent may become interested in ascertaining whether it is pure and wholesome or is contaminated. • The defendant has further alleged in its answer that by chapter 59 of the Laws of 1903, section 157 of the city charter was amended so as to substitute the commissioner of public works for the executive board, and then by adding the following: “ Ho other person or corporation shall enter upon or excavate any road, street, highway or public place in the city of Rochester, for the purpose of laying down pipes for the conveyance of water, without the permission of the common council.” And this section has been again amended since the decision in this case was made by chapter 553 of the Laws of 1903, in which there was added the following: “ Section 1. Which body may deny any such application in its discretion. Ho person or corporation shall furnish or distribute water within said city of Rochester from pipes, mains or conduits except under a franchise granted by an ordinance *49 passed by a three-fourths vote of all of the members of the common council, approved by the board of estimate and apportionment and providing for a disposition of such franchise for an adequate consideration for a period not exceeding twenty-five years and upon such terms and conditions as said common council may impose. Section 2. Any right, license or permission to any person or corporation, other than the city of Rochester, to enter upon and lay pipes for the conveyance of water in the public streets and highways of the city of Rochester, or to furnish and distribute water within said city, accruing, accrued or acquired under and pursuant to any previous act of the legislature, or part of such act, is hereby repealed and revoked. Section 3. All acts and parts of acts inconsistent with this act are hereby repealed.” Section 157 of the city charter had reference to the power of the executive board over the extension of the water mains of the city, their repair and maintenance. The duties of the executive board were transferred to that of the commissioner of public works, and he was, therefore, given the power which the board had previously possessed over the streets and the extension of the water mains therein. The first amendment prevents any other person or corporation from entering upon, excavating or laying down pipes in the streets, without the permission of the common council. It may be that manufacturing corporations and abutting owners upon streets who desire to have connections made with the water mains of the city in the future must obtain the permission of the common council to open the streets and make connections with its city water system; and that the provisions of the amendment should be construed as applying to the water works plant of the city, and, therefore, not in conflict with the general law. But as to the last amendment, made after the trial and decision of this case, we think no such construction is permissible. It was evidently intended to meet the circumstances of this case and to prevent the plaintiff from laying its pipes within the territory of the city. It remains, therefore, to be determined whether this legislation can be given force and effect. As we *50 have seen, the plaintiff corporation had been perfected and it had paid the state the taxes imposed therefor. It had caused surveys to be made and a map filed, locating its route, and had entered into a contract for the construction of its plant, including the laying of its pipes. It had acquired its right of way and had entered into contracts for.the supplying of water, in accordance with its charter. It had expended money and incurred obligations. All this had taken place before the legislation of 1903. The plaintiff, in incurring these obligations and in making these expenditures, had the right to rely upon the faith of the franchise which it had acquired, under which it had the right to supply the localities with water. We think these rights had become vested and were property within the meaning of the Constitution, which prohibits the deprivation of a person of property without due process of law. (People v. O'Brien, 111 N. Y. 1.) As we have seen, under the general statute, the right was given to the water company to lay its pipes in the highway of an adjoining city, town or village. Ro consent of the municipal authority was' required. While we have made suggestions with reference to this legislation, we think that the whole matter is subject to legislative control. The care, control and management of the highways at common law were vested in the sovereign. In this state the sovereign power is with the people, as represented in their legislature. The sovereign power over highways may be delegated to municipalities to such an extent as the legislature may deem advisable ; and when the grant by the government is made to a municipality of a portion of its sovereign power, it is to be deemed a sufficient consideration for an implied contract on the part of the municipality to perforin the duties which the charter imposes, and the contract so made with the sovereign power inures to the benefit of every individual interested in its performance. (Conrad v. Trustees of the Village of Ithaca, 16 N. Y. 158.) The management and control of highways, given by the state to cities and villages, is still subject to such statutes as the legislatura shall adopt with reference thereto. *51 And when, therefore, the legislature sees fit to sanction their use for the transportation of water for the benefit of the people of a municipality, it is a public use which the legislature has the power to authorize without the consent of the municipality. It is suggested that it was not necessary that the plaintiff should run its line of pipe through the city of Rochester; that it could have located its line through and around the city through the town of Irondequoit. We have not been favored with a finding as to the amount of additional expense that would be involved in the making of this circuit of the city, and we consequently cannot determine as to whether it would be so great as to render the undertaking financially impossible and thus operate to 'deprive the villages named of an opportunity to procure water. We think a sufficient answer to this suggestion lies in the fact that the town of Irondequoit does not directly intervene between the towns named in the certificate of incorporation which seek the supply of water, or furnish the direct, natural and feasible route between the same. The remaining suggestion, coming from the city, is to the effect that the plaintiff corporation may become a competitor of the city. This grows out of the fact appearing in the record that the city of Rochester owns and operates a municipal water plant which supplies water to its inhabitants for domestic and manufacturing purposes; that the plant cost eleven millions of dollars, and that there are three millions of dollars in municipal bonds outstanding ; that for many years the Hew York Central & Hudson River Railroad Company has been supplied with water within the city from the municipal plant, it paying therefor from $18,000 to $20,000 per annum; that the rate charged the company by the city has been fourteen cents per thousand gallons; and that the company has entered into a contract with the plaintiff corporation to supply it with water at about one-half of that rate. This fact doubtless furnishes the chief reason on the part of the city for opposing the laying of the company’s lines through the city on the right of way it has obtained. We do not at this time *52 deem it necessary to engage in any discussion of the merits of municipal ownership, or to determine whether the establishing of a municipal plant operates to give the city an exclusive right to supply its inhabitants with water. Under the statute, as we have seen, the company has the right to run its mains through the city, in order to comply with the purposes of its grant. When it attempts to supply water to the inhabitants of the city within its territorial limits, its power to do so may then be questioned by the municipality, and the courts may then be called upon to determine the extent of its powers in that regard. The Hew York Central & Hudson River Railroad Company is not here opposing this judgment. The city of Rochester is not interested in the question as to whether the plaintiff has obtained from the railroad company a valid right of way along the company’s lands. It, therefore, is not in .a position to call upon the courts to determine the validity of such title. The judgment should be affirmed, with costs.