Nassau County v. South Farmingdale Water Dist.

• Decision Date: 22 May 1978
• Citation: 405 N.Y.S.2d 742,62 A.D.2d 380
• Parties: COUNTY OF NASSAU, Respondent, v. SOUTH FARMINGDALE WATER DISTRICT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 742

405 N.Y.S.2d 742

62 A.D.2d 380

COUNTY OF NASSAU, Respondent, v.SOUTH FARMINGDALE WATER DISTRICT, Appellant.

Supreme Court, Appellate Division,Second Department.

May 22, 1978.

Carman, Callahan, Carman & Sabino, Farmingdale (Gregory W. Carman, Farmingdale, of counsel), for appellant.

William Gitelman, County Atty., Mineola(Tracie P. Peddy, Robert S. Hoshino, Jr. and Natale C. Tedone, Mineola, of counsel), for respondent.

Before DAMIANI, J. P., and SUOZZI, GULOTTA and O'CONNOR, JJ.

SUOZZI, Justice.

We are called upon in this appeal to define the nature and scope of the right of the plaintiff county to order the removal of pre-existing water mains and pipes owned by the defendant, South Farmingdale Water District, and located under a State road, in order to make way for the construction of a county-wide sewer system.The Special Term and the dissent have adopted the view that the defendant municipal water district must bear the cost of removing those installations, which conflict with the county's construction of a sewer system.

For the reasons hereinafter set forth, I disagree with the conclusion reached by the Special Term and the dissent.In my view the county should bear the cost of removing and relocating the municipal water district's mains and pipes.Before expanding upon these reasons, I turn first to a statement of the facts and the procedural context of this appeal.

THE FACTS AND STATUS OF THE LITIGATION

The defendant municipal water district is a special improvement district which was organized in 1931, pursuant to the Town Law, for the purpose of supplying water to the inhabitants of the district (seeTown Law, §§ 190,198, subd. 3,215).

In accordance with proper enabling legislation, approximately 20 years ago the municipal water district constructed and installed certain water mains and pipes in the area of the Hicksville-Massapequa Road, continuing 500 feet south of the Seaford-Oyster Bay Expressway, and also in the area of Stewart Avenue, Old Post Road and Bayberry Lane.

In April, 1965 the County Board of Supervisors passed an ordinance creating a Sewage Disposal District and, subsequent thereto, drafted plans to install a sewer system in this area.It soon became apparent that the county's plans to install the sewer system would conflict with the water district's mains, valves and hydrants.Following numerous but unsuccessful meetings held between the county and the water district to resolve the conflict, the county demanded and directed that the defendant"relocate, temporarily remove and/or support and protect its water mains and other equipment", so as not to interfere with the county's sewer construction, and to do so at the water district's cost and expense.Upon the water district's refusal, plaintiff's contractor removed the water installations at a cost to plaintiff of $22,074.52.

Plaintiff thereupon commenced this action for a declaration that the county's duty to build sewerage facilities was within the police powers of the State and was superior or "paramount" to the water district's right to maintain water utility installations, and for reimbursement from the defendant of the cost of relocating its mains.Defendant, in its answer, denied that plaintiff had a "paramount" right to construct a sewerage system and interposed numerous defenses, alleging, inter alia :

(1) that the route for the sewer lines was unreasonable and that defendant had neither been given timely notice nor consulted prior to the formulation of the sewer lines;

(2) that the defendant was a separate autonomous municipal corporation and was equal in stature to plaintiff with respect to this action;

(3) that plaintiff had actual knowledge long before construction commenced that its plans would cause substantial conflict with defendant's facilities; and

(4) that plaintiff's act constituted a "taking" of defendant's property without just compensation, and that the space sought by plaintiff"has already been put to a prior public use by installations of defendant."

As a counterclaim, defendant alleged, inter alia, that plaintiff had failed to supervise the contractor's work and that defendant had been compelled to relocate, replace and repair certain facilities, damaging it to the extent of $54,277.97.In the alternative, the water district alleged that by reason of the lack of notice to it, it did not have sufficient time to submit counter plans, which allegedly also resulted in damages in the amount of $54,277.97.

In its motion to dismiss the complaint, defendant argued that plaintiff's actions constituted a condemnation or taking of its property without compensation, a patently illegal act.

The Special Term, in denying the motion, relied on Matter of Consolidated Edison Co. of N.Y. v. Lindsay, 24 N.Y.2d 309, 300 N.Y.S.2d 321, 248 N.E.2d 150, which held that a privately owned utility must bear the cost of removing and relocating its lines whenever public health, safety or convenience so required.The Special Term also held that "no authority" existed to "warrant a different result" in the case of a public utility.

The dissent herein, in voting to affirm the order of Special Term, takes the view that the municipal water district, in supplying water to its residents, is carrying out a "proprietary" or nongovernmental function (seeLayer v. City of Buffalo, 274 N.Y. 135, 136-139, 8 N.E.2d 307, 309;Canavan v. City of Mechanicville, 229 N.Y. 473, 476, 128 N.E. 882;Oakes Mfg. Co. v. City of New York, 206 N.Y. 221, 228, 99 N.E. 540, 541), and that in this capacity it is no different than a private utility and must therefore bear the risk and cost of removal of its installations if the public health, safety or welfare so require (Matter of Consolidated Edison Co. of N.Y. v. Lindsay, 24 N.Y.2d 309, 316-318, 300 N.Y.S.2d 321, 324-327, 248 N.E.2d 150, 152-154, supra ).The dissent also takes the position that the county's actions in directing that the municipal water district's installations be removed did not constitute an act of condemnation since the latter only acquired a license to install its equipment (New York Tel. Co. v. Town of North Hempstead, 41 N.Y.2d 691, 699-700, 395 N.Y.S.2d 143, 148-149, 363 N.E.2d 694, 698-700).

There is no doubt that the county's actions did not constitute an act of condemnation since the right to install water lines is only a license or privilege and not the grant of an interest in or appurtenant to real property (New York Tel. Co. v. Town of North Hempstead, supra ).Accordingly, the municipal water district's arguments on this issue, which constitute the main thrust of its brief, must be rejected.

However, I do disagree with the distinction drawn by the dissent between propriety and governmental functions of government in general, and with its description of a municipal corporation's supplying of water to its residents as a proprietary function of government in particular.

Although I am ready to concede that three New York cases cited by the dissent (Oakes, Canavan and Layer, supra ) collectively support this distinction and its application to a municipal water supply system, I do not find those cases to be binding, or even persuasive, authority in resolving the issue at bar for the following reasons:

(1) the distinction between proprietary and governmental functions of government is a concededly artificial and illogical distinction which was judicially created in order to alleviate the hardships of the application of the doctrine of sovereign immunity in the field of torts; and

(2) the abolition of the doctrine of sovereign immunity and the reluctance of New York courts to expand that distinction in contexts other than in tort litigation, have rendered the distinction a total anachronism, which has no rational connection, or any relevance, to the issue at bar.

As far back as 1865, the Court of Appeals stated that it was difficult to "appreciate the distinction suggested between the public and private functions" of a governmental body (Darlington v. City of New York, 31 N.Y. 164, 200).In subsequent casesNew York courts defined governmental powers and functions as those which are "essentially public, and for the general good of all the inhabitants"(Sun Print. & Pub. Assn. v. Mayor, 8 App.Div. 230, 238, 40 N.Y.S. 607, 611, affd.152 N.Y. 257, 265, 46 N.E. 499, 500;see, also, People ex rel. Buffalo & Ft. Erie Pub. Bridge Auth. v. Davis, 277 N.Y. 292, 298, 14 N.E.2d 74, 76;2 McQuillin, Municipal Corporations (1966 rev. vol.), § 10.05).Proprietary functions are those "relating to the accomplishment of private corporate purposes in which the public is only indirectly concerned, and as to which the municipal corporation is regarded as a legal individual"(McQuillin, supra, § 10.05, p. 745).Under these definitions, it is readily understandable why one noted jurist remarked: "Indeed, since a governmental body exists solely for the purpose of benefiting its people and providing for the general good, it is quite difficult to understand how any public body that is not acting ultra vires can function in any other than a public manner"(MEDINA, J., in Merritt-Chapman & Scott Corp. v. Public Utility Dist. No. 2, 319 F.2d 94, 105(CCA 2d, 1963)).

Nevertheless, a "considerable body of law" arose which differentiated between the "governmental" and "proprietary" functions of public bodies in order to "mitigate the harsh rule that formerly prevailed holding governments immune from liability in tort"(Merritt-Chapman & Scott Corp. v. Public Utility Dist. No. 2, 319 F.2d 94, 105, supra;but seeLooper v. City of Easley, 172 S.C. 11, 172 S.E. 705, andTurner v. Travelers Ins. Co., 169 So.2d 736(La.App.), where the courts held that the municipality's supply of water was a governmental function, even in a tort context).

In New York, this approach was enunciated in three cases decided by the Court of Appeals in the early part of this century, i. e., Oakes,...