In re New York Water Serv. Corp.

• Decision Date: 23 April 1940
• Citation: 283 N.Y. 23,27 N.E.2d 221
• Parties: Petition of NEW YORK WATER SERVICE CORPORATION.
• Court: New York Court of Appeals Court of Appeals

283 N.Y. 23

27 N.E.2d 221

Petition of NEW YORK WATER SERVICE CORPORATION.

Court of Appeals of New York.

April 23, 1940.

Appeal from Supreme Court, Appellate Division, Third Department.

Proceeding under the Civil Practice Act, s 1283 et seq., in the matter of the petition of the New York Water Service Corporation for an order directed to the Water Power and Control Commission of the Department of Conservation of the State of New York, to review a determination by the Water Power and Control Commission which denied an application by the corporation for temporary authorization to use underground water in the Flatbush area of the borough of Brooklyn. From a nonunanimous order of the Appellate Division, 257 App.Div. 590, 13 N.Y.S.2d 760, in which appeal was granted in 257 App.Div. 1084, 14 N.Y.S.2d 1003, annulling a determination of the appellant commission, the Water Power and Control Commission of the Department of Conservation of the State of New York appeals upon certified questions.

Order of the Appellate Division modified, and, as modified, affirmed. John J. Bennett, Jr., Atty. Gen. (Timothy F. Cohan, of Albany, of counsel), for appellant.

George R. Fearon, of Syracuse, for respondent.

James Dowsey, Co. Atty., of Mineola (Marcus G. Christ, of Hempstead, of counsel), amicus curiae for County of Nassau.

Edgar F. Hazleton, Co. Atty. of Jamaica (Guy O. Walser, of Sayville, of counsel), amicus curiae for County of Suffolk.

LEWIS, Judge.

This is a proceeding under article 78 of the Civil Practice Act (section 1283 et seq.) to review a determination by the Water Power and Control Commission of the Department of Conservation which denied the respondent's application for authorization temporarily to use underground water in the Flatbush area of the borough of Brooklyn for domestic, industrial and fire hydrant purposes.

Upon the petition filed by the respondent for an order to review such determination answers were interposed by the county of Nassau and by the Water Power and Control Commission. Thereupon Special Term by order transferred the proceeding to the Appellate Division, Third Department, which annulled the determination and remitted the proceeding to the Commission with directions to prepare findings of fact and proceed in accordance with the decision. Leave to appeal to this court was granted by the Appellate Division upon certified questions.

The record before us discloses that the respondent is a private water company which operates a number of water supply plants in the State, one of which is in the area in Kings county which was formerly the town of Flatbush and now constitutes the twenty-ninth ward of the borough of Brooklyn. Within the Flatbush area extending three miles from east to west and two miles from north to south the respondent supplies water service to a population of 350,000. In addition its service supplies water for twenty-one hundred fire hydrants and numerous industrial plants. None of the respondent's customers has an available source of water supply other than the respondent's wells, located in the Flatbush area. It also appears that, under conditions presently existing, the city of New York is unable to supply water needed by this area.

The daily safe yield of potable water from the respondent's wells is about twenty-nine million gallons of which the average daily consumption is slightly more than twenty-seven million gallons. Since 1932 there has been a loss of nearly fourteen million gallons in the available daily supply, due to the intrusion of chlorine in the wells, the abandonment of one well because of screen stoppage and a reduction in pumpage to prevent excess sands from passing through the screens. Meantime the respondent has made every reasonable effort to keep its wells in repair and, in an endeavor to maintain its supply, it has employed inspectors to trace down leaks. These efforts, however, have been offset to an extent by a gradual increase in population within the area served.

Since 1932 the peak of daily consumption has gone as high as thirty-three million gallons five million gallons above the daily average and on such occasions has necessitated the use of a reserve supply. It thus appears that the supply of water in the respondent's wells presently available for the Flatbush area has an insufficient factor of safety and affords no margin to meet the demands of those occasions when existing wells may be shut down for repairs.

It was in such circumstances that the respondent in 1937 applied to the Water Power and Control Commission, pursuant to applicable provisions of the Conservation Law (Consol.Laws, ch. 65), for the approval of its proposed construction and the temporary operation of four graveled wells of shallow depth, each of which is designed to have a capacity for the daily production of two million gallons. The proposed location of the new wells is in the northerly part of the Flatbush area, removed from locations where existing wells have shown a tendency to salinity.

It should be said at this point that prior to the present application (known as No. 1286) the respondent had made a prior application in 1935 (known as No. 1009). By the 1935 application the respondent, as in the present proceeding, proposed to sink four new graveled wells each of which was to have a daily capacity of two million gallons. Such new construction was not to increase the authorized capacity of respondent's Flatbush plant but was to replace well capacity which had been lost through the encroachment of salt in existing wells and the diminution of capacity of its plant through long use. The 1935 application (No. 1009) was denied by the Commission, which denial was confirmed by the Appellate Division (256 App.Div. 883, 9 N.Y.S.2d 318). The only difference between the present application (No. 1286) and the 1935 application (No. 1009) is that the former sought the Commission's approval for the perpetual operation of four replacement wells whereas the present application (No. 1286) seeks permission to operate temporarily four new replacement wells under conditions to be prescribed by the Commission and only until some new source of municipal water supply is made available to the Flatbush area from the New York City-Delaware River project or elsewhere. It is estimated that such new municipal supply will be available in 1947. In the course of the trial of the present proceeding it was agreed that the record on appeal in the former application No. 1009 should be a part of the record in application No. 1286 and should be considered as before the court on any appeal.

From this statement of facts, as to which the parties are in practical accord, and the procedural steps which have led up to this appeal, we pass to a consideration of the questions certified by the Appellate Division:

‘(1) Are there sufficient findings of fact to sustain the determination?

‘(2) Was there competent proof of all the facts necessary to be proved in order to authorize the Water Power and Control Commission to deny the application of the New York Water Service Corporation?

‘(3) If there was such competent proof, was there, upon all the evidence, such a...