Pocantico Water-Works Co. v. Bird

Decision Date01 December 1891
Citation29 N.E. 246,130 N.Y. 249
PartiesPOCANTICO WATER-WORKS CO. v. BIRD et al.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from supreme court, general term, second department.

Action by the Pocantico Water-Works Company against Seth Bird and others to restrain defendants from locating and constructing a certain dam and reservoir. Plaintiff obtained judgment, which was affirmed by the general term. Defendants appeal. Modified.

Henry C. Griffin, for appellants.

E. T. Lovatt, for respondent.

HAIGHT, J.

This action was brought to restrain the defendants, who were acting as the board of water commissioners of Tarrytown, from locating and constructing a dam and reservoir upon the premises of one George Hart, on the Pocantico river, at a point between the plaintiff's dam and its contemplated storage reservoir.

The plaintiff was organized under chapter 737 of the Laws of 1873, as subsequently amended, and had entered into contracts with the villages of North Tarrytown, Dobbs Ferry, and Hastings to supply them with pure and wholesome water. It had located its works upon the Pocantico river, and had constructed a dam and reservoir a short distance above the premises owned by Hart, on which the defendants sought to locate their works. It had acquired, by contract, purchase, or proceedings to condemn, the lands occupied by it, and the right to divert the water of the stream, from most of the riparian owners below the dam, and, as the court finds, was proceeding with due diligence and in good faith to acquire the riparian rights of Hart; that the defendants, with actual notice of all that the plaintiff had done to secure Hart's rights in the stream, undertook to locate a dam and reservoir on Hart's land, by which they proposed to take the waters of two of the tributaries of the Potantico river to supply the village of Tarrytown with water, and, on April 21, 1888, filed a map thereof, and instituted proceedings to condemn for their use the riparian rights of Hart. It further appears that, on the 29th of May, 1886, the plaintiff caused to be filed in the office of the clerk of the county a map showing the location of the dam and reservoir which have been constructed, and of the lands necessary to be taken therefor; that, on April 9, 1888, at a meeting of the company, it was resolved that the maps prepared by the engineer of the company showing the location of lands required for the high-service reservoir, with the rights of way thereto, to be erected by the company on the Baylies property, and also the storage reservoir located below the present one, to be erected on Phelps and Rice properties, be adopted, and the president and secretary directed to sign the same and attach the corporate seal of the company thereto, according to law, and cause the same to be filed in the county clerk's office. The map so adopted and approved was filed in the office of the clerk on the 7th day of May, 1888, but not until after the defendant had filed its map. It is quite apparent that it was not within the contemplation of the plaintiff, at the time of the filing of its original map, in 1886, to construct the high-service reservoir or the storage reservoir. The dam and reservoir, as it now exists, with the property necessary to be taken therefor, with the necessary pipe lines therefrom, is all that was covered by that map. It is true that the lower riparian owners upon the stream were entitled to damages by reason of the diversion of the water of the stream at the plaintiff's dam and reservoir. It was the duty of the plaintiff to settle with such owners for the damage so occasioned them, but we do not understand that this would deprive the defendant, or any other company, of the right to locate its works upon the same stream, below the defendant's works. The plaintiff, by its dam and reservoir only, could divert the water of the stream at that place. All of the overflowor surplus, together with that which entered from tributaries below the dam, would continue on, down the natural bed of the stream, and this surplus was available for the use of other companies. But it is claimed, on behalf of the plaintiff, that it had found it necessary to also appropriate this surplus, as well as that coming to the river from the tributaries below the dam, and that this appropriation was finally determined upon at the meeting of the company of April 9th; that, in order to carry out the enterprise, it had acquired the lands necessary for the new storage reservoir, with the right to divert the water of the river thereat, instead of the dam above, and that all of the rights of the riparian owners between the company's dam and its proposed storage reservoir had been acquired with the exception of that belonging to Hart, and that it was proceeding with due diligence to acquire his interests when the defendants, with full knowledge of the plaintiff's purposes and plans, filed their map, and instituted their proceedings to condemn. It is under these circumstances that the plaintiff seeks to enjoin the defendants.

As to the river below the plaintiff's dam, the defendants succeeded in filing its map before the plaintiff, but we do not regard this act as necessarily giving the defendants exclusive right to condemn and acquire the lower riparian rights in the river. We are aware that in the case of Rochester, H. & L. R. Co. v. New York, L. E. & W. R. Co., 110 N. Y. 128, 17 N. E. Rep. 680, it was held that where a railroad corporation has made and filed a map and survey of the line of route it intends to adopt for the construction of its road, and has given the required notice to all persons affected by such construction, and no change of route is made as the result of any proceeding by any landowner or occupant, it has thereby acquired a right to construct and operate its road upon such line, exclusive, in that respect, as to all other roads or corporations. But, in the case of a railroad, the statute provides for the location of its route through the counties through which it has to pass, and such location is made known by the map and survey which it places on file. The statute, then, within a specified time, gives to the persons interested the right to institute proceedings to change the location. If this is not done the road becomes located at the place indicated upon the map...

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48 cases
  • Kelo v. City of New London
    • United States
    • Connecticut Supreme Court
    • March 9, 2004
    ...Under a narrow reading of the term, public use includes public buildings, utilities, schools and roads. Pocantico Water-Works Co. v. Bird, 130 N.Y. 249, 259, 29 N.E. 246 (1891); 2A P. Nichols, supra, ž 7.02[6], p. Other courts have construed the public use clause more broadly to include a u......
  • President and Fellows of Middlebury Coll. v. Cent. Power Corp. of Vt.
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    • Vermont Supreme Court
    • October 3, 1928
    ...inhabitants of a restricted locality. The use, however, must be in common, and not for a particular individual. Pocantico Waterworks Co. v. Bird, 130 N. T. 249, 29 N. E. 246, 247. "An enterprise does not lose the character of a public use because that use may be limited by circumstances to ......
  • Public Utilities Commission of State of Idaho v. Natatorium Co.
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    • Idaho Supreme Court
    • November 6, 1922
    ... ... v ... Public Service Com., P. U. R. 1920A, 639; Re Garden Home ... Water Works (Or.), P. U. R. 1919D, 1921.) ... Davidson ... & Davison, for Respondents Hurtt and ... Lanning v. Osborne, 76 F. 319; 1 Wyman, Public ... Service Corporations, sec. 271; Pocantico Water Works Co ... v. Bird, 130 N.Y. 249, 29 N.E. 246; Minnesota Canal & P ... Co. v ... ...
  • Edwards v. City of Cheyenne
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    ...v. McAnnulty (U. S.) 47 L.Ed. 90.) Property sought to be condemned by a city must be necessary for the purposes of the city. (Pocanto v. Bird, (N. Y.) 29 N.E. 246; People Humphrey, 23 Mich. 471.) A proceeding instituted to condemn property for both public and private uses indiscriminately c......
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2 books & journal articles
  • New York's fight over blight: the role of economic underutilization in Kaur.
    • United States
    • Fordham Urban Law Journal Vol. 37 No. 4, October 2010
    • October 1, 2010
    ...216, 219 (N.Y. App. Div. 1989). (84.) See, e.g., Erie R.R. v. Steward, 63 N.E. 118, 119 (N.Y. 1902); Pocantico Water Works Co. v. Bird, 29 N.E. 246, 258 (N.Y. (85.) BUILDING EMPIRES, DESTROYING HOMES, supra note 45. (86.) 115 N.E.2d 659 (N.Y. 1953). (87.) Id. at 661. (88.) See Yonkers Cmty ......
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    • June 22, 2006
    ...(1931). (76.) 269 U.S. at 66. (77.) 270 N.Y. 333 (1936). (78.) Id. at 338. (79.) Id. at 339 (citing Pocantico Water Works Co. v. Bird, 130 N. Y. 249). (80.) See, e.g., Neufeld v. O'Dwyer, 79 N.Y.S.2d 53 (N.Y. 1948); Opinion of the Justices, 120 N.E.2d 198 (Mass. 1954); Davis v. City of Lubb......

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