In re the New Rochelle Water Co.

Barnard, P. J.: The legislature by a general act authorized the formation of a company to furnish pure and wholesome water to the towns and [526] villages of tlie State. (Chap. 737, Laws of 1873, p. 1100.) This act did not contemplate tbat lands and water rights for this purpose should be acquired, except by purchase from the owners. By chapter 415, Laws of 1876, the right is given to acquire lands by condemnation, for the purposes of the public use. The same right is again given by chapter 321, Laws of 1881, and the purposes for which water might be furnished were increased. The legislative power under which these proceedings are taken is ample. The laws are constitutional "Water may be taken for the public use, and even in a case where a legislative act authorized the taking of water .by a village for public and private use, it was held by the Court of Appeals that it must be so construed as to mean that the private use was only incidental to the public use and involved in it. (Chap. 347, Laws of 1866; Matter of Middletown, 82 N. Y., 196.) When the use is a public one it is within the constitutional power of the legislature to authorize by general law the formation of an indefinite number of corporations with power to take by condemnation the lands necessary for the public use on compensation being made {Buffalo, etc., R. R. v. Brainard, 9 N. Y., 100.) The order should be affirmed, with costs. Pratt, J., concurred; Dykman, J., not sitting. Order affirmed, with costs and disbursements.