Warsaw Water Works Co. v. Village of Warsaw

Parker, Ch. J. The questions presented by this record we regard as sufficiently considered in the Skaneateles case, decided at this term (Skaneateles Water Works Co. v. Village of Skaneateles, 161 N. Y. 154), and that decision calls for a modification of this judgment. One of the objects of this action, as appears in the eighth paragraph of the complaint and in the prayer for relief, was to restrain the defendants from imposing, or threatening to impose, any discriminating taxes upon the owners of property abutting on the mains of the defendants’ system of water works, or within two hundred feet of the hydrants thereon, or on any such real property so abutting, or within such distance as the defendants’ board of water commissioners may deem beneficial, because of the refusal, neglect or omission of the owner to take water from the defendants for domestic or manufacturing purposes. The trial court found as' a fact: “ That the defendants at the time of the commencement of this action intended to proceed, and now intend to proceed, to establish a scale of water rates for the use of water, and also for fire protection, to be *181 assessed on all real property abutting on the mains or within two hundred feet of the hydrants, or on such real property so abutting or within such distance as the board of water commissioners may deem beneficial, upon which real property the water is not used by the owners or occupants thereof for domestic or manufacturing purposes, as provided for in chapter 284 of the Laws of 1894, or of any acts of the legislature of this state referred to or offered in evidence herein,” and as a conclusion of law: “ That the defendants are entitled to establish a scale of rates for the use of water and also rates for fire protection, to be assessed on ail real property abutting on the mains within two hundred feet of the hydrants, or on such real property so abutting, or within such distance, as such board may deem beneficial, upon which real property the water is not used by the owners or occupants thereof for domestic or manufacturing purposes, without purchasing or acquiring the rights, privileges and franchises of the plaintiff, the same to be established and assessed in accordance with chapter 284 of the laws of 1894.” The second provision of the judgment adopts the phraseology of the conclusion of law and, therefore, constitutes an adjudication that the provisions of the statute, which carries on its face evidence of the intent to assist water commissioners in securing customers from the patrons of their adversaries, is valid and enforceable. We held otherwise in the Skaneateles case, and this judgment should be modified accordingly by striking out the second provision of the judgment, and as thus modified the judgment should be affirmed, with costs to the appellant in this court and in the Appellate Division. All concur, except Bartlett, J., dissenting (see dissenting opinion in Skaneateles Case, 161 N. Y. 171) and Haight, J., not voting. Judgment accordingly.