Swan Lake Water Corp. v. Suffolk County Water Authority
| Decision Date | 01 June 1967 |
| Citation | 228 N.E.2d 773,281 N.Y.S.2d 775,20 N.Y.2d 81 |
| Parties | , 228 N.E.2d 773 SWAN LAKE WATER CORP., Respondent, v. SUFFOLK COUNTY WATER AUTHORITY, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Le Roy Van Nostrand, Jr., Amityville, for appellant.
Melvyn Tanenbaum, Huntington, for respondent.
Louis J. Lefkowitz, Atty. Gen. (Dunton F. Tynan, Ruth Kessler Toch and Seth Towse, Albany, of counsel), for Water Resources Commission of the State of New York, amicus curiae.
The controversy arises over whether plaintiff or defendant shall serve the Brookhaven Memorial Association, Inc., hospital on the east side of Hospital Road, East Patchogue, Suffolk County. Plaintiff serves a residential area known as Pine Crest, the easterly boundary of which is the west side of Hospital Road across the street from the Brookhaven hospital which is on the east side of the same street. It was authorized to serve this area in 1955 by the Water Power and Control Commission, predecessor of the present Water Resources Commission (76 N.Y.S.Dept.Rep. 741). Under the consent of the commission, and in conjunction with its service of the Pine Crest area, plaintiff has a water main in the west side of Hospital Road directly opposite the hospital. The nearest connection of defendant-appellant is 2,190 feet away, around the corner on an intersecting street known as Patchogue-Yaphank Road. Appellant is likewise subject to the authority of the Water Resources Commission. In 1949 the predecessor commission made an order purporting to authorize defendant, without the further approval of the commission, to extend its supply and distribution mains within and supply waters to persons resident in the entire County of Suffolk, 'Provided, however, that nothing in this decision contained shall be held * * * to authorize said authority 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'.
Although plaintiff's water main is in the street on which the hospital fronts, and defendant's nearest main is 2,190 feet away, defendant-appellant contends that it is not competing with plaintiff on the legal technicality that plaintiff's permission to serve Pine Crest was limited by the statement of the commission that 'No service outside of this area will be permitted.'
The idea that these parties are not competing for the business of the hospital has no practical foundation. The commission has full power to extend the territory served by plaintiff. It has done so in at least four instances. In every order under which defendant has sought to proceed, the Water Power and Control Commission said (70 N.Y.S. Dept.Rep., p. 320): 'Generally, this authority shall not be held in any way to restrict the Commission in taking such action as it may deem suitable and proper on any water supply application which may come before it affecting Suffolk County.' The control reserved by the commission over defendant with respect to paralleling or competing with other mains is unaffected by the fact that such paralleling or competition would occur either within or without an existing service area. For the commission could make assignments and reassignments of service areas as required by the facts and circumstances in each specific case, and when it prohibited 'paralleling' other mains by defendant it clearly meant paralleling in fact. Plaintiff could not install crossovers or service mains across the street to the hospital, of course, without the consent of the commission, but plaintiff was under no administrative or statutory restraint which would prevent an application for permission to serve the area in dispute or other areas. Exactly this was done and permitted in Matter of Suffolk County Water Auth. v. Water Power & Control Comm., 12 A.D.2d 198, 209 N.Y.S.2d 978, opn. per Bergan, J.
The order of the Appellate Division, now under review, does not purport to determine that the hospital shall be serviced by plaintiff rather than by defendant. This is a matter within the expertise of the commission. As was said in the Suffolk County Water Authority case just cited (12 A.D.2d, supra, p. 202, 209 N.Y.S.2d pp. 981--982):
'The problem of allocation of authority to serve a given territory is one involving an advised and specialized administrative judgment which must take into consideration a balancing of the needs of existing areas served, the contiguous or remote relationship of facilities to service; the geographic symmetry and arrangement of the territory in the light of present and future needs; the probable growth of territory; the nature and interests of the public and governmental agencies concerned; the available water; and a number of other related questions.
'The broad responsibility to make determinations affecting the access to water resources of the State rests by law in the commission (Conservation Law, Article V (Water Resources Law)). It must 'control and conserve' the water resources 'for the benefit of all the inhabitants of the State'. City of Syracuse v. Gibbs, 283 N.Y. 275, 28 N.E.2d 835, 838.
It is the defendant which has attempted to bypass the commission in this instance, not the plaintiff. The order appealed from would require that the commission give its attention to whether defendant should be authorized to extend its mains by 2,190 feet to compete with plaintiff, or whether plaintiff should be allowed to extend its service pipes across the street to the hospital. Plaintiff, as respondent on the appeal, is urging that the commission pass upon this; the defendant, in appealing, is seeking to avoid it.
It is true that, without consulting the commission, defendant and the hospital entered into what purports to be a contract in 1965 for the supplying of water by defendant, and something is made of a letter dated August 26, 1965 from the New York Fire Insurance Rating Organization to the vice-president of the hospital concluding that as a result of an inspection in 1960 the then facilities of plaintiff were inadequate. This occurred before the increase in well capacity by plaintiff by the installation of a second well and the installation of additional hydrants after the rating organization's inspection in 1960. It should be repeated that we are not suggesting nor did the Appellate Division intimate that the courts should usurp the function of the commission, but rather that its power and expertise should not be usurped by defendant or the hospital. The commission should rule on which is the proper source of supply, and on whether defendant's mains should be extended for this purpose by more than one third of a mile. Furnishing water usually involves a monopoly to avoid duplication of facilities, which is an important reason on account of which it is subject to public regulation. Neither the hospital nor defendant can determine for themselves what shall be their source of supply, which is a matter for the commission to decide.
The Appellate Division, reversing Special Term, held that sections 522 and 523 of the Conservation Law, Consol.Laws, c. 65, now sections 450 and 451, precluded this 2,190-foot extension, in possible competition--as the commission might find--with the plaintiff, without obtaining permission of the commission. The majority opinion points out correctly that, when the commission enlarged generally to the entire county the territory in which defendant might supply water, '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 new water supply system, built in accordance with plans hereafter approved by the commission, shall be operated until the work has been approved by it.''
We also indorse the further statement by the Appellate Division: ...
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