Northern Westchester Lighting Co. v. President of Ossining

Majority

p. 789

Northern Westchester Lighting Company, Respondent, v. The President and Trustees of the Village of Ossining, Appellant.

Second Department,

January 10, 1913.

Headnote

Gas and electricity— Transportation Corporations Law, sections 60 and 61, construed — right of gas company to lay mains to supply gas to adjoining municipalities.

An incorporated village which has granted to a light and power company a right to lay gas mains in public streets cannot contest the right of such company to tear up streets in order to lay mains to supply adjoin

p. 790

ing municipalities with gas upon the ground that the consent of abutting owners has not been obtained. Whatever the rights of the abutting owners, they are not within the control of the municipality.

As sections 60 and 61 of the Transportation Corporations Law, regulating the incorporation of gas companies, empowers such company to run its mains through cities, villages and towns named in its charter, a village having granted such company a right to lay mains in its public streets cannot prevent it from laying other mains to supply adjoining municipalities named in its charter.

Appeal by the defendant, The President and Trustees of the Village of Ossining, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 8th day of July, 1912, upon the decision of the court, rendered after a trial at the Westchester Special Term, enjoining the defendant from interfering with the laying of gas pipes in the village of Ossining.

T. G. Barnes, for the appellant.

Frank L. Young, for the respondent.

The plaintiff, as the successor to the Northern Westchester Light and Power Company, by a merger was, on the 23d day of April,-1912, engaged in laying its gas mains or conductors in the streets specified in the complaint, for the purpose of supplying its customers in the village of Ossining with gas, and extending its said gas mains beyond the limits of the village of Ossining to and through the village of Briarcliff Manor, and to and through the village of Pleasantville, when the defendant, by force, drove the plaintiff’s employees from their work and prevented the laying of the pipes. The plaintiff thereupon brought this action to restrain the defendant from interfering with the work; and a preliminary injunction issued, which, upon the trial of the action, was made permanent, and the defendant appeals from the judgment.

The defendant urges that it is unable to find any law giving the authorities of one municipality the right to grant to a gas company the power to tear up its streets, without consent of abutting owners, to lay pipes to supply gas to an outside municipality. It may be remarked, in passing, that the.

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defendant has no interest in the question of the rights of abutting owners. Its only interest in the streets of the village of Ossining is that of the public in the highways, and whatever rights the owners of the fee may have, these are not within the control of the officers of the municipality. With this question out of the way, it is clear to our mind that sections 60 and 61 of the Transportation Corporations Law (Consol. Laws, chap. 63; Laws of 1909, chap. 219) fully provide for doing just what the plaintiff was attempting to do when the defendant interfered. Section 60 provides for the incorporation of gas companies, and for naming the towns, villages, cities and counties in which the operations of the corporation are to be carried on, and section 61 provides that i incorporated for the purpose of “supplying gas for light” it shall have the additional powers “to manufacture gas, and to acquire by purchase or otherwise natural gas, and to sell and furnish such quantities of gas as may be-required in each city, town and village named in its certificate of incorporation, for lighting the streets and public or private buildings, or for other purposes; and to lay conductors for conducting gas through the streets, lanes, alleys, squares and highways in each such city, village and town, with the consent of the municipal authorities thereof, and under such reasonable regulations as they may prescribe. * * * Any corporation authorized under any general or special law of this State to manufacture and supply gas shall have the like powers and privileges.”

Here is clearly ample authority for the plaintiff in this action, organized, as it is, for the purpose of supplying gas for light, to make use of the streets of the village of Ossining, either to supply that municipality with gas or for the purpose of supplying any of the other villages or towns named in its certificate of incorporation, provided it has the consent of the municipal authorities. There is no dispute that on or about the 7th day of March, 1905, the defendant granted to the Northern Westchester Light and Power Company (the plaintiff being its successor) the right to lay its conductors for conducting gas through the streets of Ossining without limitation, but it is contended by the defendant that this consent did not operate to give the plaintiff the right to run its conductors through

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said village for the purpose of supplying other municipalities. We are clearly of the opinion that the resolution adopted by the defendant in March, 1905, could not have the restricted effect which is here contended for, because the statute under which the consent was given constituted the franchise of the corporation, and gave it the power to run its conductors through “ each such city, village and town,” referring to the cities, villages and towns named in its charter where the business was to be carried on. When the village of Ossining gave its consent it merely made the franchise operative in that municipality, and it became entitled to exercise within that village all of the powers given by the statute during the whole term of its corporate existence. {People ex rel. Woodhaven Gas Co. v. Deehan, 153 N. Y. 528 .) The statute clearly contemplated that the gas need not be manufactured in each community, for it is expressly provided that the corporation shall have the power “ to acquire by purchase of otherwise natural gas and to sell and furnish such quantities of gas ” as may be necessary,- thus clearly indicating that the conductors were for the purpose of distributing to the various villages and towns which might be included in the certificate of incorporation.

In this view of the matter it is clearly immaterial that the court excluded evidence of admissions on the part of the plaintiff’s superintendent that the work being done was for the purpose of supplying the other towns and villages mentioned in its charter, and the evidence of such superintendent, called by the defendant, assuming that it established the fact, would have no bearing upon the proper disposition of this appeal.

The judgment appealed from should be- affirmed, with costs,

Jenks, P. J., Thomas, Carr and Rich, JJ., concurred.

Judgment affirmed, -with costs.

Cases cited

People ex rel. Woodhaven Gas Light Co. v. Deehan 153 N. Y. 528 N.Y. 1897-10-05 p. 792