Majority
p. 525In the Matter of the Application of the NEW ROCHELLE WATER COMPANY.
Headnote
Power of eminent domain may be conferred, upon corporations created, under chapter 737 of 1873, pi'omding for the formation of water-works companies in towns andChapter 737 of 1873, providing for the creation and formation of water-works companies in the towns and villages of the State, as amended by chapter 415 of 1876, and chapter 321 of 1881, confers upon such companies the power to take lands by condemnation, upon making compensation as is in such amendatory acts provided for; and is constitutional and valid.
Matter of Middletown ( 82 N. Y., 196 ) followed '
Appeal from an order made at the Westchester Special Term and entered in Kings county, appointing commissioners to appraise damages for lands to be taken by the New Rochelle Water Company.
The petitioning corporation was formed under the act of the legislature of this State, entitled “An act in -relation to the formation of waterworks companies in towns and villages in the State of New York,” known as chapter 13 Y of the Laws of 1813, and the amendatory and supplemental acts (Laws 1816, chap. 415, and 1881, chap. 321), to supply the village of New Rochelle with water. At the hearing on the motion for the appointment of the commissioners, testimony was given in support and in contravention of the allegations contained therein; and the counsel for Cook and Seacor, property owners, who refused to sell their lands and opposed the application, moved to dismiss the petition and proceedings, on the ground that such acts were unconstitutional,'so far as they authorized the taking of land without the consent of the owners. The court denied the motion and decided that the applicant was entitled to the appointment of commissioners.
Joseph D. Fay, for Seacor and Cook, land owners, appellants.
Maptín J. Keogh, for the petitioner respondent.
The legislature by a general act authorized the formation of a company to furnish pure and wholesome water to the towns and
p. 526
villages of tlie State. (Chap. 737, Laws of 1873, p. 1100.) This act did not contemplate tbat lands and water rights for this purpose should be acquired, except by purchase from the owners. By chapter 415, Laws of 1876, the right is given to acquire lands by condemnation, for the purposes of the public use. The same right is again given by chapter 321, Laws of 1881, and the purposes for which water might be furnished were increased. The legislative power under which these proceedings are taken is ample. The laws are constitutional "Water may be taken for the public use, and even in a case where a legislative act authorized the taking of water .by a village for public and private use, it was held by the Court of Appeals that it must be so construed as to mean that the private use was only incidental to the public use and involved in it. (Chap. 347, Laws of 1866; Matter of Middletown, 82 N. Y., 196 .) When the use is a public one it is within the constitutional power of the legislature to authorize by general law the formation of an indefinite number of corporations with power to take by condemnation the lands necessary for the public use on compensation being made {Buffalo, etc., R. R. v. Brainard, 9 N. Y., 100 .)
The order should be affirmed, with costs.
Pratt, J., concurred; Dykman, J., not sitting.
Order affirmed, with costs and disbursements.