Swan Lake Water Corp. v. Suffolk County Water Authority

• Decision Date: 14 February 1966
• Citation: 267 N.Y.S.2d 584,25 A.D.2d 542
• Parties: SWAN LAKE WATER CORP., Appellant, v. SUFFOLK COUNTY WATER AUTHORITY, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 584

267 N.Y.S.2d 584

25 A.D.2d 542

SWAN LAKE WATER CORP., Appellant, v. SUFFOLK COUNTY WATER AUTHORITY, Respondent.

Supreme Court, Appellate Division, Second Department.

Feb. 14, 1966.

Melvyn Tanenbaum, Huntington, for appellant.

Van Nostrand & Martin, Amityville, for respondent; LeRoy Van Nostrand, Jr., Amityville, of counsel.

Before BELDOCK, P. J., and UGHETTA, CHRIST, BRENNAN and HILL, JJ.

MEMORANDUM BY THE COURT.

In an action for an injunction, plaintiff appeals from an order of the Supreme Court, Suffolk County, entered November 3, 1965, which denied plaintiff's motion for a preliminary injunction.

Order reversed, without costs, motion granted, and matter remitted to the Special Term for the settlement of an order fixing the scope, terms and conditions of the preliminary injunction and for such other proceedings as may be consistent with the views herein stated.

Plaintiff is a water-works corporation which, under a franchise granted to it in 1955 by the State Water Power and Control Commission, the predecessor of the present State Water Resources Commission, has been supplying water to a housing development which lies to the west of the westerly side of Hospital Road in East Patchogue, Long Island; and one of plaintiff's distribution mains lies along the westerly side of Hospital Road.

Defendant is a public benefit corporation which was created in 1937 to operate a water supply system (see Suffolk County Water Authority Act [Public Authorities Law, art. 5, tit. 4, §§ 1074-1092]). In 1949 the Water Power and Control Commission, in connection with approving defendant's plans for acquisition of the water supply and distribution systems and facilities of two water-works corporations, determined that defendant 'may, without the further approval of this Commission, extend its supply and distribution mains within and supply water to persons resident in the entire county of Suffolk,' subject to the proviso among others that defendant was not thereby authorized 'to enter into competition with or to parallel the distribution mains of any waterworks system, either publicly or privately owned, now legally established in this county or which hereafter legally may be established therein.' Defendant has been supplying water in various parts of the county, including the area immediately south of the development supplied by plaintiff. The Brookhaven Memorial Hospital is located on the easterly side of Hospital Road, opposite that development.

In August of 1965 the hospital entered into a contract with defendant under which defendant would supply water to the hospital. Defendant, in order to carry out contract, was about to cause a distribution main to be laid along the easterly side of Hospital Road, with appropriate connection to a main which has been used by defendant with respect to the area to the south of the development which is being supplied by plaintiff, when plaintiff instituted this action and made its motion for a preliminary injunction. Specifically, plaintiff would have the court restrain defendant from installing such distribution main and from 'interfering' with plaintiff's franchise. It is plaintiff's contention that defendant's proposed action is without authority in law; would irreparably and materially injure plaintiff in that inter alia it would interfere with the possibility of plaintiff's expansion of its service by supplying the hospital; and would deprive plaintiff of an opportunity to litigate the merits of that proposed action before the Water Resources Commission.

When the Water Power and Control Commission generally enlarged to the entire county the territory in which defendant might supply water, in 1949, the Conservation Law provided in section 522 that no supplier of water to the public shall '(a) exercise any franchise hereafter granted to supply water to any such inhabitants of the state; or * * * (c) construct any extension of its supply mains; or (d) * * * until the approval therefor of the commission has been applied for and obtained,' with exceptions not pertinent here, viz., an exemption with respect to 'a municipal water supply plant'; in section 523 that application for such approval was to be made on 'maps, plans, and profiles of such new or additional water supply'; and in section 524 that '[n]o now water supply system, built in accordance with plans hereafter approved by the commission, shall be operated until the work has been approved by it.'

In our opinion, the Commission had no power to dispense with these statutory requirements. Since the Commission did not have before it at that time any such maps, plans and profiles with respect to supplying water to this hospital, the Commission's grant to defendant should be deemed limited to the subject of territorial area and not to include a license to lay distribution lines without prior approval by the Commission.

With the revision of these statutory provisions in 1960, the above quoted prohibited items (a) and (c) of section 522 reappeared as items (d) and (f) of subdivision (1) of present section 450 of the Conservation Law, which section applies the prohibition to the point when the supplier shall have 'first submitted the maps and plans therefor to the Commission, as hereinafter provided, and until the Commission shall have approved the same * * *'; and the subjects of sections 523 and 524 became covered in present sections 451 and 480 of the Conservation Law. Without such prior approval by the present Water Resources Commission or its predecessor, viz., by such predecessor Commission in connection with enlarging the territory of defendant's franchise in 1949, defendant's proposed action would be illegal. (See, as to the requirement that the Commission must pass upon specific plans for water distribution mains, Great Neck Water Auth. v. Citizens Water Supply Co. of Newtown, 12 N.Y.2d 167, 174-175, 237 N.Y.S.2d 331, 335, 187 N.E.2d 786, 788; Ops.Atty.Gen., 1924, pp. 214, 215 [31 N.Y.St.Dept.Rep. 678, 680]; cf., id., 1931, 334, at p. 336.)

We do not pass upon the issues as to whether defendant's proposal to lay a water main along the easterly side of Hospital Road in order to carry water to the hospital is or is not consistent with the ...