Hyperlawhypertext legal databasebeta In re East Canada Creek Electric Light & Power Co. 49 Misc. 565

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In re East Canada Creek Electric Light & Power Co.

49 Misc. 565 Court N.Y. Sup. Ct. English

Delivered by Wright, J.

Contents

Majority

p. 565
Matter of the Application of the East Canada Creek Electric Light & Power Company, Plaintiff, to Acquire Lands of Norman C. Loucks, Nellie B. Smith and Frederick Eaker, Defendants.
(Supreme Court, Herkimer Special Term,
December, 1905.)

Headnote

Eminent domain — Power in general — What constitutes public use — Furnishing electricity to municipality.
Furnishing light to a municipality is a public service, and an electric light company in any town or village in this State having contracts with towns or incorporated villages for the lighting of streets though a private corporation may acquire by condemnation lands to enable it to increase its power in order to furnish more electricity under such contracts.
This is a proceeding to acquire certain lands of the defendants herein according to the provisions of the Condemnation Law.
The petitioner is an electric light and power company, incorporated under the Transportation Corporations Law of the State of New York, and contracted for the lighting of certain villages and towns some of which, on account of their •subsequently increased population, require a larger amount of electricity for lighting their streets under their contract
p. 566
heretofore made with the plaintiff than the plaintiff is now able to furnish, hence in order to comply with its lighting contract the petitioner proposes to develop a power on the East Canada Creek at Inghams Mills, by building a large dam upon its lands, which action will result in the flooding: of the lands of the defendant Loucks, and the plaintiff therefore seeks to acquire these lands by condemnation proceedings.
The right to condemn the lands of the defendant is-claimed by the plaintiff under the Laws of 1896, chapter 446, section 1, which reads as follows: “Any electric light company in any town or village in this state, having a contract with any town or incorporated village for the lighting of the streets, parks, squares or public buildings in any town or village, shall have the right and is hereby vested with the-power and authority to acquire such real estate as may be-necessary for the purposes of its incorporation, or acquire tha right of way through any property in the same manner as is now vested by law in water-companies! Such real estate or right of way to be acquired in the manner and form prescribed by the general condemnation law of this state.”'
,It also appeared that the plaintiff furnished power to» certain mills and factories during the daytime.
Snyder, Cristman & Earl, for plaintiffs.
Andrew J. Nellis, for defendant Loucks.

Under the Laws of 1896, chapter 446, plaintiff is given the right to acquire by condemnation proceedings the lands of defendant since they are necessary for the purposes of its incorporation. Further, furnishing light to a municipality is a public use and benefit (Matter of Bloomfield & Rochester Nat. Gas Light Co. v. Richardson, 63 Barb. 437 ; Johnson v. Thomson-Houston Elec. Co., 54 Hun, 469 ; Consumers’ Gas & Elec. L. Co. v. Congress Spring Co., 61 Hun, 133 ; Palmer v. Larchmont El. Co., 158 N. Y. 231 ) with regard to which the power of eminent domain may be exercised; and it is no objection that the plaintiff is a private

p. 567
corporation, so long as the use or purpose to which the property is to be devoted is public. See Matter of Union El. R. Co. of Brooklyn, 112 N. Y. 74 ; Matter of Burns, 155 id. 27; Bloodgood v. Mohawk & Hudson R. Co., 18 Wend. 9 .

The act contemplates the taking of property for public use and .is constitutional. Buffalo & N. Y. City R. Co. v Brainard, 9 N. Y. 100 ; Matter of Burns, supra.

Upon the papers presented the plaintiff is entitled to the' relief demanded in the petition, and a judgment may be prepared accordingly in which the following named gentlemen may be appointed commissioners for the purpose of ascertaining and determining the compensation to be made to the owners for the property to be taken, viz.: Hon. Henry E. Turner, Lowville, Lewis county; Hon. Charles J. Palmer, Little .Falls, Herkimer county, and Hon. E.

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