Syracuse Water Co. v. City of Syracuse

• Citation: 22 N.E. 381,116 N.Y. 167
• Parties: SYRACUSE WATER CO. v. CITY OF SYRACUSE. SAME v. SAME et al.
• Decision Date: 08 October 1889
• Court: New York Court of Appeals

116 N.Y. 167

22 N.E. 381

SYRACUSE WATER CO.

v.CITY OF SYRACUSE.

SAME

v.SAME et al.¹

Court of Appeals of New York,

Second Division.

Oct. 8, 1889.

Appeals from judgments of the general term of the supreme court in the fourth judicial department, affirming judgments entered upon decisions of the court of special term dismissing the complaints. The first action was brought to restrain the defendant from granting to the Central City Water-Works Company the right to place pipes or other structures in the city of Syracuse, with a view to supply it with water. And the purpose of the second action was to restrain each of the defendants from exercising any right or privilege, in that respect, which the city, through its common council, had by resolution sought to give the defendant company, and which the latter had assumed to take.

W. G. Tracy and Geo. F. Comstock, for appellants.

Louis Marshall, for respondent.

BRADLEY, J., ( after stating the facts as above.)

These actions rest upon the charge, made by the plaintiff, that the defendants were proceeding to invade its rights. And the plaintiff alleges that such would be the effect of the exercise of the privilege which the city of Syracuse sought to grant to the Central City Water-Works Company of providing the means contemplated to supply the city with water, and in performing the contract made between the defendants for that purpose. This charge is founded upon the claim, asserted by the plaintiff, of the exclusive right or franchise to furnish the city with water. The leading inquiry, therefore, is whether such claim is supported. The plaintiff was incorporated by Laws 1849, c. 224, and ever since then it has furnished water to the city and its inhabitants. To do that was the purpose of its creation, and it was fully provided by its charter with the powers essential to that service, among which was that of eminent domain. The franchise granted to the plaintiff embraced all the powers, privileges, and immunities within the charter, and constituted a contract between the state and the plaintiff, and in the exercise of the powers so granted the latter was entitled to protection. It follows that, if within the franchise granted by the state to the plaintiff was the exclusive right to supply the city of Syracuse with water, the defendants should be enjoined from proceeding, as they are attempting to proceed, to interfere with or impair such right. Water-Works v. Water-Works, 120 U. S. 64, 7 Sup. Ct. Rep. 405;Gas Co. v. Light Co., 115 U. S. 650, 6 Sup. Ct. Rep. 252;Water-Works Co. v. Rivers, 115 U. S. 674, 6 Sup. Ct. Rep. 273;Gas Co. v. Gas Co., 115 U. S. 683, 6 Sup. Ct. Rep. 265. By reference to its charter, it appears to have been provided that the plaintiff should, when requested, furnish water to the common council of the city for the extinguishment of fires and other purposes, upon such terms as might be agreed upon between them; and, in case they could not agree, either the common council or the plaintiff might apply to the supreme court for the appointment of three commissioners, who should prescribe the terms upon which the water should be furnished for the term of three years; and at the expiration of that time, and once in three years thereafter, application in like manner might be made for a new commission for such purpose. Section 16. In case the plaintiff should not furnish a sufficient supply of good and wholesome water for the use of the city and the people thereof within two years from the passage of the act, and continue to do so, the common council might give six months' written notice to the company to furnish the same, or that application would be made to the supreme court for the appointment of five commissioners, and, in case the company should continue to neglect to furnish such supply until the expiration of the notice, then the property of the company should be appraised, etc., and upon payment by the common council to the company of the sum so determined they should become the owners of the property so appraised and paid for, and be possessed of all the powers given by the act to the company. Section 26. And at any time after the expiration of 20 years the common council should have the right to resume all the property, rights, powers, and privileges of the company, on paying to it the amount of capital stock actually paid in and expended in the works, with 15 per cent. annually thereon, deducting therefrom the actual profits annually received by the company; and thereupon it should convey such property to the common council. Section 29. The provisions of those three sections are thus specifically referred to because they are relied upon to support the construction and effect claimed for the statute on the part of the plaintiff; and for a like purpose reference is made to section 19, which provides that nothing in the act should be deemed to affect, impair, or interfere with the rights, privileges, and obligations of the city ‘derived or imposed by or under the act of the legislature entitled ‘An act to supply the village of Syracuse with wholesome water,’ passed March 27, 1821, or any act subsequently passed amending or altering' it. And this takes the inquiry back to the act of March 27, 1821, which provided that the freeholders and inhabitants of the village of Syracuse, in the town of Salina, were authorized to take water for the use of the village from any springs on the lands of the people of the state in that town lying eastward of the village, and to carry the same under ground across such lands to the village, subject to the right of the canal commissioners to take the water from such springs to supply the Erie canal, if their elevation was sufficient to carry water from them into the Rome summit level of the canal. It also provided for the election annually, by the inhabitants of the village, of three trustees to transact the business in relation to the rights granted by the act to the inhabitants of the village, to bring the water, and regulate the manner of its use, and to fix the sums to be paid annually by those using it.

This was the situation until in 1825, when the village was incorporated by an act which provided that all the rights, property, and powers of the trustees of the Syracuse waterworks should be vested in the corporation, subject to the obligations of such trustees; and that the duties enjoined on them by the act of 1821 should thereafter be exercised by the trustees of the village. Chapter 124, § 11. And by an amendatory act passed in 1834 the trustees of the village were given power to convey to Oliver Teall, his heirs or assigns, all the rights, property, and powers of the trustees of the Syracuse water-works, as vested in the village, for the term of 35 years; and it was provided that Teall, his heirs or assigns, should be possessed of all the powers, rights, and privileges which were granted by the act of 1821, before referred to, and all the powers of the village on the subject; and, if he should neglect to exercise them, the trustees of the village, after 2 years' notice, should have the right to resume all such rights, powers, and privileges. And it was further provided that on the expiration of the 35 years they should have the power to reinvest themselves, and take possession of the water-works, by paying the estimated cost of erecting the works, less the decrease in value occasioned by waste, decay, and use, to be determined by appraisers to be appointed by the supreme court in case the parties were unable to agree upon the amount. Chapter 151. In June, 1841, pursuant to that act, and subject to its provisions, such conveyance was made by the trustees of the village of Syracuse to Oliver Teall. In 1847 the village was converted into a city by charter passed in December of that year, by which it was provided that the common council should have power to make, modify, and repeal ordinances, rules, regulations, and bylaws for the following among other purposes; ‘To exercise all other powers conferred on them by the act in relation to highways, the prevention of fires, the levying of taxes, the supplying the village with good and wholesome water, and other subjects of municipal regulation,’ (chapter 475, tit. 3, § 7, subd. 31;) and, further, that all former acts relative to the incorporation of the village of Syracuse were repealed, but that such repeal should not affect any act done, privilege granted, right accrued or established, previous to the time when such city charter should take effect; and that the same rights, duties, obligations, and requirements ‘held by the trustees of the village of Syracuse, or imposed upon them, in relation to Oliver Teall, as to supplying the said village with pure and wholesome water, shall be conferred and imposed upon the said common council,’ (Id. tit. 10, § 12.) Upon the incorporation and organization of the plaintiff, and in 1849, Teall and his associates in interest conveyed the water-works property and privileges before mentioned to it; and through such conveyance the plaintiff took all rights, powers, and privileges which were originally vested in the trustees by the act of 1821 to supply the inhabitants of the unincorporated village of Syracuse with water, and which, with the property applicable to such purpose, passed to the incorporated village by the act of 1825, and thence to Teall by conveyance pursuant to the act of 1834. This reference has been made to the statutes representing the legislative grants to the plaintiff, and from which it derived its rights and powers upon taking its charter and the conveyance referred to, with a view to the inquiry as to the character and extent of such powers and privileges in their relation to the city of Syracuse.

The company evidently was created solely for the purpose of supplying water to the city for the use of it and its inhabitants; and, so far as appears, the city then had no means for such supply...