Olmsted v. Proprietors of the Morris Aqueduct

— 326 — The opinion of the court was delivered by Van Syckel, J. The questions involved in this case arise under an application made by the Proprietors of the Morris Aqueduct for the appointment of commissioners to condemn for their uses all the waters of a certain spring called Sand spring, and a certain specified portion of the waters of Mills Bailey brook. The appointment of commissioners was certified into the Supreme Court, and there held to be legal. The reasons relied upon by the plaintiff in error for setting aside the appointment of commissioners, which were unsuccessfully urged in the court below, are the following: First, because the Proprietors of the Morris Aqueduct can exercise the power of eminent domain only so far as is necessary to supply Morristown with water. Second, because, if there be lieed of more water, they are required by law first to take the springs and streams having origin or running or being to the westward ofMorristown and between the road from Morristown to Baskingridge and the road from Morristown to Mendham; and that the water which they seek to divert is not within such territory. Third, because said Proprietors of the Morris Aqueduct have extended their water-pipes outside of Morristown and supply persons living outside. Fourth, because the law under which they have proceeded is not constitutional. The original act of incorporation, passed November 16th, 1799, gives the company no power to acquire land or water-rights by condemnation. By a supplement, passed in February, 1862, authority was granted at all times thereafter to add to and enlarge their works, and to increase their facilities for furnishing water to the village of Morristown to such extent and in such manner as may be deemed necessary and proper,, and for that purpose to take and divert any spring or springs, stream or streams of water having their origin, running or being to the westward of the village of Morristown and between the direct road leading from Morristown to Basking327 ridge and the direct road or turnpike leading from Morristown to Mendhatn, and to lay down, maintain and repair pipes, &c. Pamph. L. 1862, p. 30. By the third section of the act, power is given to a judge of the Morris Pleas to appoint commissioners to assess damages where the land-owner and water company fail to' agree. In 1876 a general law was passed providing for the construction, maintenance and operation of water works, by the fifteenth section of which it is provided “ that any aqueduct company now in existence under any special charter in this state shall have the right from time to time to add to 'and extend their works to such extent as may be necessary to carry out the purposes of its corporation, and for that purpose to take all such lands and divert all such streams of water in the manner hereinbefore provided, as shall be necessary for that purpose.” • Pamph. L. 1*876, jp. 323; liev., p. 1364. The fifth section of this act requires the application for the appointment of commissioners to be made to a justice of the Supreme Court. On the 23d of March, 1883, an act was passed making it lawful for any aqueduct or water company, organized under the general law or specially chartered for the purpose of supplying any city, borough or town with water, to extend its mains outside and beyond the corporate limits of such city, borough or town, along any road or street leading therefrom, for the purpose of supplying the dwellers along such road or street with water. The interpretation and effect which, in my judgment, must be given to these several acts of legislation will be briefly stated. The act incorporating Morristown was passed in 1865. Therefore the area included by the term “ village of Morris-town,” as used in the act of 1862, supplementing the water company charter, cannot be circumscribed by the artificial lines afterwards fixed by law for the purpose of erecting a municipal government for Morristown. The act of 1865 had no relation to the water charter. The words “ village of Morristown,” in the act of 1862, must be construed as if the — 328 — act of 1865 had not been passed. In that view they have a wider and broader meaning than the plaintiff ascribes to them. It would be an exceedingly narrow reading of the act to say that the constantly increasing area over which houses were contiguously built was not comprehended by its provisions and could not participate in its benefits. The act of 1862 invests the aqueduct company with the power to take lands within a prescribed area, for the purpose of supplying the village of Morristown with water. The fifteenth section of the act of 1876 is comprehensive in its terms, applying to every aqueduct company then in existence under any special charter. The legislature declared that every such company should have the benefit of its provisions. To exclude the defendant company from its operation involves a disregard of the plain language of the act. It clearly grants to the company the right to go outside the area to which it was restricted by the act of 1862, and to take all such streams of water as shall be necessary to carry out the purposes of its incorporation. By the aet of 1883 the power is added to extend its mains in certain roads and streets outside the limits of the town, for the purpose of supplying water. This act enlarges the purposes of the company as declared in the act of 1862, so that by force of the two acts it may supply Morristown and also the designated localities outside of Morristown. The act of 1876 applies to the company in its enlarged capacity, and under the fifth section of that act all lands necessary for its increased purposes may be taken by condemnation. "Whether this power is wisely bestowed is a question which must be addressed to the law-maker. The burden is on the company to make it appear that it is necessary, within the meaning of this legislation, to take the waters in question for its purposes. In McCulloch v. State of Maryland, 4 Wheat. 414, Chief Justice Marshall, in criticising the term “ necessary,” says: “ It does not always import an absolute physical necessity so strong that one thing, to which another may be termed necessary, cannot exist without that other. If reference be had to — 329 — its use in the common affairs- of the world, or in approved authors, we find it frequently imports no more than that one thing is convenient, or useful or essential to another. To employ the means necessary to an end is generally understood as employing any means calculated to produce the end, and not as being confined to those single means without which the end would be entirely unattainable.” In State v. Hancock, 6 Vroom 537, 546, this court said that this is the sense in which the word “ necessary ” is always used in clauses which confer upon incorporated companies the general authority which is to enable them to perform the function for which they are created. It will be observed that the act of 1876 was passed after the word “ necessary ” had received this judicial construction, and therefore the more limited meaning must be ascribed to it. Is it therefore useful, needful and requisite, in - order to create an ample water supply for the district that may draw upon it, that the company shall be permitted to appropriate the waters described in the application for commissioners ? It is impossible to estimate with precision the quantity of water that- will be needed to supply the wants of a population of about six thousand; nor can it be computed with accuracy what the supply of water will be from the district hitherto relied upon. In a matter of such extreme necessity, all contingencies must be provided for, and the siqjply should be so ample that a lack of water could not be reasonably apprehended. A supply to that extent is necessary to enable the company to perform its duty fo its consumers. The evidence satisfies me that in the granting of this application the legislative authority has not been transcended. This disposes of all the questions presented by the case except that as to the constitutionality of the acts in so far as they authorize the exercise of the power of eminent domain. This turns upon the question whether the use for which condemnation is authorized is a public use. The courts must determine whether the use is of a public nature, but under what circumstances it is wise to exercise the power of eminent — 330 — domain is purely a matter for legislative discretion. National Docks R. R. Co. v. Central R. R. Co., 5 Stew. Eq. 755, 764. If the use is a public one the legislative authority over the subject, and the extent to which it shall exercise that authority, cannot be supervised by judicial inquiry. The use being of a public nature, it undoubtedly must rest, as Chancellor Kent says, in the wisdom of the legislature to determine when the public use requires the assumption of private property. This I understand to be the declaration of this court in Tide-water Company v. Coster, 3 C. E. Green 518, where the Chief Justice cites with approbation the language of Chancellor Walworth, classifying among public uses the bringing of water to cities and villages. In Gardner v. Trustees of Newburgh, 2 Johns. Ch. 161, the complainant asked for an injunction to restrain the trustees from diverting a watercourse for the purpose of supplying the village with water. In granting the injunction, Chancellor Kent put it upon the ground that compensation to the land-owner was not provided. He expressly stated that he was not to be understood as denying the competent power in the legislature to take private property for necessary or useful public purposes, and, perhaps, even for the purposes specified in the act on which the case before him arose. In Inhabitants of Wayland v. County Commissioners, 4 Gray 500, land taken by a city, under legislative authority, for the purpose of supplying the city with pure water, was held to be justly taken in the exercise of the right of eminent domain. But it is not necessary that the public should own the property taken. It may be owned by a private corporation, such as a railroad company, a canal company, or even by a private individual. Ownership and use are not synonymous. The constitution is satisfied if the use is public, and the public may have the privilege of using the same. Mills on Eminent Domain, § 13; Bloodgood v. Mohawk Railroad, 18 Wend. 9. On the principle of public benefit, not only the state and its political subdivisions, but also individuals and corporate — 331 — bodies may lawfully be authorized to take private property for public purposes. The fact that members of an incorporation have.it pecuniary interest, such as will give the corporation the char/icter of a private enterprise, does not debar the state from using it to further the public welfare. Upon this basis, Mr. Justice Cooley says, rests the right to charter companies for the construction of railroads and highways. lie further remarks that while it will not be safe to apply with much liberality the rule “ that where the public interest can be in any way promoted by the taking of private property, the taking can be considered for a public use,” the settled practice of free governments must be our guide in determining what is a public use, and that only can be regarded as such where the government is supplying its own needs, or is furnishing facilities for its citizens in regard to those matters of public necessity, convenience or welfare, which, on account of their peculiar character, and the difficulty in making provision for them otherwise, it is both proper and usual for the government to provide. He enumerates the supply of pure water among the measures of public utility for which there may be an appropriation of private property. In Lumbard v. Stearns, 4 Cush. 60, Chief Justice Shaw declared that the use was public, where the legislative act incorporated an aqueduct company for the purpose of supplying a village with water with the right to take springs and lands for its purposes, although the charter contained no provision requiring the company to supply consumers. The presumption is always in favor of the validity of legislative acts. If no obligation rested upon the water company to supply on reasonable terms all who apply for water, the use would be strictly private. The duty of furnifjjting the public with water must be present, to make it ofE public character. Although the legislative act may contain no express provision imposing such duty, the presumption is that the legis — 332 — lature intended to act within constitutional limits by creating a public franchise, and that the grant to the company was for the purpose of providing for the public necessity \ .and convenience. \ The powers granted to the water company are unquestionably capable of being employed as a means of great public usefulness, and hence their creation was a legitimate act of legislation. An intention that they shall be used otherwise will not be imputed to the law-making power, nor will the grantee be permitted to pervert them to uses for which they could not lawfully be bestowed. In accepting such a charter the company impliedly engages on its part to use it in such manner as will accomplish the object for which the legislature designed it. It cannot refuse to perform the public duties thus cast upon it, without surrendering the franchise. When an individual or a corporation is guilty of a breach of public duty by misfeasance or - nonfeasance, the law provides a remedy. The true criterion by which to judge of the character of the use is, whether the public may enjoy it of right, or by permission only. Bonaparte v. Camden and Amboy R. R. Co., Baldwin C. C. 205. Assuming, as we must, that the legislature intended to exercise its lawful power, and that the company, in invoking the benefit of the corporating act, took upon itself the correlative obligation to serve the public, it necessarily follows that the use is a public one. I agree with Mr. Justice Parker, who delivered the opinion in the court below, that if the.supplying of a city or town with water is not a public purpose, it is difficult to conceive of any enterprise entrusted to a private corporation that could be classed under that head. The supplement of 1880 to the act concerning telegraph compares contains no express words imposing the duty to send meftages for all who apply. In Turnpike Company v. News Company, 14 Vroom 381, the Supreme Court maintained the constitutionality of the law as constituting a public use, on the ground that there must be an implication that in — 333 — granth \ the franchise, the, legislature intended to charge the compr ?s with a duty to the public, and that in accepting the benef if the laiv, the recipient of them assumes the performa. of such public duty. The case of Paterson Gas Light Company v. Brady, 3 Dutcher 245, is cited in support of the contrary contention. In that case Mr. Justice Elmer declared that the company was under no legal obligation to supply gas to all persons having buildings on the lines of their pipes, upon tender of reasonable compensation. He rested this view upon the absence of any express provision in the charter imposing such duty upon the company. This decision fails, however, to give due effect to the purpose of the legislature in creating the 'company, and to the implied obligation assumed by the company in accepting the grant. If it were a grant for mere private uses, empowering the corporate body to withhold service at pleasure from all persons, the company would be without the right to occupy the public streets for the laying of its pipes, and, of course, the grant of eminent domain for such private purposes would be void. In this respect, in my judgment, the conclusion in the Paterson case was erroneous, and in conflict with the views expressed in the Tide-water case, and in National Docks v. Central Railroad Company. The attention of the court has also been called to the fact that by a supplement passed in 1832 the aqueduct company was authorized “ to establish and carry on any milling and manufacturing business that they may deem expedient.” This, it is insisted, is a strictly private use for which condemnation cannot be lawfully resorted to. The evidence shows that the supply of water is not appreciably diminished by the mill use, no more water passing the mill than would probably be wasted in maintaining the supply in the reservoir in a pure and wholesome condition. It cannot, therefore, be regarded as an illegal diversion of the water supply, and ought not to be considered in construing — 334 — the legislative scheme from which the defendant company derives the powers which it is now seeking to exercise. In my opinion, the judgment below should be affirmed. For affirmance — The Chancellor, Chief Justice, Depue, Reed, Scudder, Van Syckel, Brown, Clement, Cole, Paterson, Whitaker. 11. For reversal — None.