Walton Water Co. v. Vill. of Walton

• Decision Date: 01 April 1924
• Citation: 238 N.Y. 46,143 N.E. 786
• Parties: WALTON WATER CO. v. VILLAGE OF WALTON.
• Court: New York Court of Appeals Court of Appeals

238 N.Y. 46

143 N.E. 786

WALTON WATER CO.

v.VILLAGE OF WALTON.

Court of Appeals of New York.

April 1, 1924.

Action by the Walton Water Company against the Village of Walton. From a judgment of the Appellate Division (207 App. Div. 708,203 N. Y. Supp. 343), affirming by divided court a judgment of the Trial Term (122 Misc. Rep. 294,203 N. Y. Supp. 338) in favor of plaintiff, entered on a decision of the court, a jury having been waived, defendant appeals.

Judgment of Appellate Division and of Trial Term reversed, and complaint dismissed.Appeal from Supreme Court, Appellate Division, Third department.

H. C. Stratton, of Oxford, and Arthur E. Conner, of Walton, for appellant.

Arthur G. Patterson, of Walton, for respondent.

CARDOZO, J.

Plaintiff, a waterworks corporation, sues the village of Walton for the reasonable value of water furnished for fire protection at the fire hydrants in the village during the months of September and October, 1922. The defendant answers that the water was used under an agreement with the plaintiff that it would be furnished without charge. The binding force of that agreement is the chief question to be determined.

[1] The controversy brings us back to the year 1879. An agreement in writing between the plaintiff, the company, and the defendant, the village, dated August 21, 1879, purports to regulate the installation of hydrants in the streets and the use for fire purposes of water supplied therefrom. The company is to procure for the village 18 hydrants of a prescribed type and to connect 17 of them with the main pipes at the points theretofore designated by the company's engineers. The village is to have the title to the hydrants, and is to pay the actual cost, including that of connecting and setting, not exceeding a prescribed maximum. Appropriate provisions are made for the location of additional hydrants, if any are required. ‘The company, its successors or assignees, shall furnish water, and the village shall have free use thereof from such hydrants at all times for fire purposes, without charge so long as such waterworks exist.’ On the other hand, the company shall have ‘control thereof [i. e., of the hydrants] except for fire purposes, and the village shall not detach the hydrants from the main pipes' without the company's consent. Eighty hydrants have been set in place by the plaintiff under the terms of this agreement. Six more were installed under a like agreement by another company, whose property has been acquired by the plaintiff under the foreclosure of a mortgage. For upwards of 40 years the village used the water for fire protection, and the company supplied it without charge. In the year 1922 some dispute arose with reference to a tax imposed upon a special franchise. Thereupon, in October, 1922, the company presented a verified bill for water furnished for fire protection during September, 1922, and in November another bill for water furnished in October. These bills the village has been condemned to pay, upon the ground that there was no consideration for the promise made by the company to furnish water without charge.

We think consideration is not lacking, whether the test be benefit to the promisor or detriment to the promisee. The plaintiff was evidently impressed with a belief that some advantage would come to it from the privilege of keeping its hydrants in the streets. This is plain from the provision that it was to have control of them, except for fire purposes, and that unless it gave its consent they were not to be disconnected or removed. The value of such a privilege is attested by the course of dealing. The company made use of the hydrants for the flushing of its mains. It made use of them, also, to supply water at a price to the village and to owners for the sprinkling of the streets. We are told that this privilege was worthless or illusory, because the use might thereafter be prohibited or limited at the option of the village. We think the conclusion does not follow from the premise, if the premise be assumed.

There is no need to inquire to what extent, if at all the village had stripped itself of the right of interference with the hydrants by the covenant that they should be subject, except for fire purposes, to the company's control. We may assume that the control was subject to be whittled down, or even, it may be, destroyed, through the exercise of a police power impliedly reserved. This does not mean that the privilege of installing the hydrants in the streets and keeping them there was illusory or worthless. Their presence in the streets gave the company the advantage of economic opportunity. They supplied a reasonable expectancy that in the race of competition, it would fare as well as some one else, and indeed a little better. They put it on the ground, in the forefront of the field, with the plant and the equipment that gave it the first chance. Indeed, it could have no rivals without a duplication of hydrantslikely to be disfiguring and wasteful, and thus a duplication which the village would be reluctant to allow. If such opportunity is not a thing of value, we may wonder why value is ever found in the sale of a good...