Inhabitants of Twp. of Franklin v. Nutley Water Co.

• Decision Date: 15 July 1895
• Citation: 53 N.J.E. 601,32 A. 381
• Parties: INHABITANTS OF TOWNSHIP OF FRANKLIN v. NUTLEY WATER CO.
• Court: New Jersey Court of Chancery

32 A. 381

53 N.J.E. 601

INHABITANTS OF TOWNSHIP OF FRANKLIN

v. NUTLEY WATER CO.

Court of Chancery of New Jersey.

July 15, 1895.

(Syllabus by the Court.)

Bill by the inhabitants of the township of Franklin against the Nutley. Water Company for an injunction. Heard on motion for the preliminary writ, on bill, answer, and affidavits. Motion granted.

W. Skinner and Jos. Coult, for complainant. B. F. Vail and Jos.

E. Munn, for defendant.

EMERY, V. C. The bill in this case is filed by the inhabitants of the township of Franklin, in the county of Essex, against the Nutley Water Company, to restrain the defendant from laying its water pipes in certain portions of streets of the township without obtaining the consent of the township committee, and from obstructing the streets for this purpose without such consent. The answer admits the intention of the water company to lay the pipes in these streets without obtaining such consent, and claims the right to lay the pipes without the consent of the township committee, and to obstruct the streets to the extent necessary for this purpose. This obstruction, as the defendant claims, will not be more than 10 days' obstruction on one side of the street, and will not be sufficient to prevent travel on the remaining portion of the streets. On this application for preliminary injunction, there are, as I consider the case, two questions involved: First, whether the company is required by statute to obtain the consent of the township committee to laying these pipes; and, if such statutory consent is imposed, then, second, whether the township, for the protection of this statutory right, is entitled to a preliminary injunction.

As to the first question, I consider it clear that the statute under winch the water company was organized and is operating expressly requires the previous consent of the township committee. The water company was incorporated in 1889, under the act entitled "An act for the construction, mainte nance and operation of water works for the purpose of supplying cities, towns and villages of this state with water," approved April 21, 1876 (P. L. 318; Supp. Revision; 650, etc.) and the act of March 5, 1884 (P. L. 42; Supp. Revision, 053), amending the same. This act, thus amended, authorized, by its first section, the formation of a company for the purpose of constructing, maintaining, and operating water works, in any city, town, township, village, or seaside resort in this state having a population of not more than 15,000 nor less than 500 inhabitants, and for the purpose of supplying such city, town, township, village, or seaside resort and the inhabitants thereof with water. The second section of the act (Supp. Revision, 650) requires the persons desirous of forming the company to execute a certificate stating the corporate name of the company, the amount of the capital stock, term of existence, number of directors, the managers of the company for the first year, and the name of the town, city, or village in or for which such works are to be constructed and the business of the company carried on. This section then further provides: "Such certificate shall be filed in the office of the secretary of state, together with the consent, in writing, of the corporate authorities, If any, of the town or city proposed to be supplied with water." Section 3 provides: "When such certificate and consent shall have been filed as aforesaid, the persons who shall have signed and acknowledged the same, and their successors, shall be a body politic and corporate, and shall have power as such, to take and divert any and all such springs and streams of water and build, erect, alter, repair, enlarge and maintain all such reservoirs and works and lay down all such pipes and conduits for water, at such times and in such places as shall be necessary and proper to enable said corporation to carry into effect the purposes of its incorporation." This section does not expressly regulate the right of the company in the public streets or highways; and as to this subject section 12 (Supp. Revision, p. 652) provides "that such company be and they are hereby fully authorized and empowered to lay their pipes beneath such public roads, streets, avenues and alleys, as they may deem necessary for the purposes aforesaid, free from all charge to be made by any person or persons or body politic whatsoever for said privilege, and also such hydrants at the crossing or intersection of said streets or alleys; provided, that the said pipes shall be laid at least three feet below the surface of the same, and shall not in any wise unnecessarily obstruct or interfere with the public travel, or damage public or private property; and provided, that the consent shall be obtained of the corporate authorities, if any there be, of any town through which the same may be laid." The water company was incorporated in 1889 pursuant to the provisions of the second section, its certificate containing merely the particulars especially required by the section, and to this certificate was annexed the consent of the township committee of the complainants to the incorporation. No terms or conditions were imposed by the township in giving its consent. Subsequent to the incorporation, and previous to March, 1895, the water company, before laying its pipes in any of the streets or roads of the township, applied to the township committee for its consent, and procured this consent before laying its pipes. It applied again in March. 1895, for permission to lay its pipes in certain streets, for the purpose of connecting with the mains of the East Jersey Water Company; but, this permission not having been granted, the water company now claims that the consent or permission applied for is not necessary, and it had placed its pipes along the disputed streets for the purpose of laying them, when it was enjoined by the ad interim stay ordered on filing the bill. In addition to the statutory right of previous consent claimed to have been conferred by the provision in the twelfth section of the water act, the township also claims additional statutory right to previous consent by virtue of Act 1893, c. 70 (P. L. 130), increasing the power of township committees. This act provides (section 1, par. 6) that the township committees of the several townships of this state shall thereafter have power, among other things, "to lay and regulate, or prohibit the laying of water or gas or sewer pipes in or under the streets and roads or any part thereof in said township." And the act further provides (section 2) that to enforce these provisions the township committees may pass such ordinances as they shall think proper to carry into effect the powers conferred for this and other purposes of the act. The township committee, as appears by the affidavit to the bill, have passed an ordinance regulating the use of the streets under this act,...