author: Gray, J.

text:
    In the Matter of the Application of the City of Brooklyn, Resp’t, for Authority to Acquire the Property and Franchises of The Long Island Water Supply Company, App’lt.

      (Court of Appeals,

      Filed November 27, 1894.)

    1. Eminent domain—Appeal.
    Where the commissioners have found upon the evidence, and their report has been confirmed by the general term, the court of appeals is concluded as to the amount, if, in arriving at it, they have been guided by-no erroneous rule of law.
    2. Same—Franchise op water works company.
    Thfe franchise, conferred upon a corporation organized under chap. 737 of 1873, ás amended by chap. 213 of 1881, viewed as a contract to which the state is a party, does not grant a right to supply water to the town, which is exclusive in its nature, nor entitle the company to such immunity as will preclude another or other corporations for a similar object.
    3. Same.
    Nor does the agreement, in this case, between the town and the company bind the town authorities not to make a like grant to, or contract with, others, if the public needs demand it.
    4. Same.
    Such contract is exclusive only in the sense that no similar one can be made, which can infringe its particular property rights.
    5. Same.
    The legislature cannot be restricted in its grants of corporate franchises-within constitutional limits, save by its own express agreement, even though the material consequences may be such as to entail loss, if not ruin, upon existing corporations, through rivalry and competition.
    '6. Same.
    The franchise of such company, in estimating its value in condemnation proceedings, is not to be regarded as exclusive in its nature.
    7. Same.
    Chap. 335 of 1886 was not intended to, and did not, operate upon the charter of the company, and, therefore, the legislature could subsequently repeal the provision, protecting its franchise, and leave the city of Brooklyn free, to compete.
    8. Same.
    The Consolidation Act of 1892 is not unconstitutional and void.
    9. Same.
    Under such act, there can be no distinction in favor of corporations. whose franchises and operations impart to them a quasi public charade?;.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order, which reversed an order of special term setting aside the report of commissioners of appraisal of the franchise and property of the Long Island Water Supply Company, and which confirmed said report.

      William O. De Witt, Benjamin F. Tracy and Thomas F. Pearsall, for app’lt; Albert G. McDonald and George G. Reynolds, for resp’t.

       Affirming 56 St Rep. 232.

   Gray, J.

Upon the facts, as they have been stated, the legal propositions, which seem to have been urged by the water company and which were passed upon in the court below, in their consideration of the report, as we perceive from the record and the opinions, were, in substance, that the company gained, by incorporation and by its contract with the town of New Lots, certain rights to purvey water to the town, which were exclusive and permanent, during the term of the corporate charter, and that the commissioners’ award of compensation should have been based upon a recognition of the inviolable nature of the franchise and the rights of the company. Upon this appeal, a further point is raised as to the constitutionality of the act of 1892, which authorized the city to take the appellant’s property. The argument of the appeal has been made with great ability; the propositions contended for have been pressed with much earnestness and the main question is of high importance, for it concerns the guaranty given to the citizen that he shall be protected in the enjoyment of his property, and that it shall not be taken from him unnecessarily and without a just compensation being made. We have, therefore, given to the question the serious consideration which it demands.

Upon this appeal the question of the amount of the award is not one we can, or should, review. The act provides for the appointment of five commissioners, “ to ascertain the just compensation to be made for the taking,” (§ 5); and, upon the application to confirm their report, the supreme court is authorized to confirm it, or it may be set aside for irregularity, or for error of law in procedure, or upon the ground that the award is excessive, or is insufficient. Sec. 10. An appeal is then permitted to the petitioner, owner or any aggrieved person, to the general term of the second department, and “when the report is confirmed, the court shall enter a final order, which shall be binding upon all persons, etc., directing that compensation be made pursuant to the determination of the commissioners, etc.” Notwithstanding a further appeal is authorized to be taken to this court (chap. 669, Laws 1893), we are confined to the questions of law which have arisen. We may concede that the evidence would well have justified a larger award, even upon the theory upon which the commissioners proceeded; but having found upon evidence, and their report having been confirmed by the court below, we are concluded as to the amount, if, in arriving at it, they have been guided by no erroneous rule of law. The'first and prominent question which we are called upon to consider then, is the objection that the commissioners have erred in the legal principles, which they adopted for their guidance in valuing the property to be condemned. The objection does not so much relate to the valuation of the material property, in the lands, buildings and plant of the water company, as to the value affixed to thedranchise. The commissioners refused to consider the company’s franchise as exclusive in its nature, and beyond the power of the legislature, or of the local authorities acting under legislation, to affect through a similar grant to another company and the consequent rivalry. For the company, the argument may bestated to be that its charter wasa contract with the state and the town of New Lots, granting to it the right and franchise to supply pure and wholesome water to the town during the term of its corporate existence, and that, irrespective of the question of whether the state so became a party to a contract, the dealings and proceedings with the town constituted a common-law contract; and that this contract, however it may be regarded as originating, is protected against any impairment of its obligations by the Constitution of the United States. It is, also, insisted that the contract was with the town as a proprietor and that it conferred the proprietary right to furnish water, which could not be divided, or impaired, during its term. Assuming the correctness of the definition of the capacity in which the town acted, the difficulty with tlié argument will be to allow its conclusion ; whether that be to make the franchise an exclusive one, or to regard the grant by the town as one which makes it part, with the whole proprietary right of purveying water within its limits.

Let us look at the statute, under which the water company was incorporated, and the dealings had between the appellant and the town. The act of 1878, and the amendatory acts which had been passed up to 1881, when the appellant’s incorporation took place,' constituted a general law of the state, under which any persons might form themselves into water works companies in towns, or villages. As a preliminary step they were, however, required to secure the assent of the particular town, or village, which it was proposed to supply with water, to an application for that puipose. That being secured, the promoters could file their certificate and become a corporate body, with all the extraordinary privileges, rights and immunities, which incorporation confers upon individ uals. It is to be observed, with respect to the statute, that, while it permits of incorporation for the business purpose of supplying water, it aims mainly at the protection of the community and makes it a condition that the promoters shall set forth, not only the general facts relating to the proposed company, but, also, the intended sources of the water supply. The merit of this salutary provision is obvious. There is nothing in the statute, which, either in terms, or by apparent implication, grants to the corporation formed under it an exclusive right to supply the town or village with water ; or which precludes other persons, if they can secure an assent from the authorities to their application, from forming another company to supply water from other sources to the inhabitants of the same town, or village. The statute is general in its operation and in the grant of franchises, subject to the condition mentioned. It simply confers authority and power upon the corporation, when formed, to supply the authorities and the inhabitants of the place with water, at rates to be agreed upon. In its bearing upon the rights of the water company, I think the most to be said is, that it confers a franchise and sanctions the agreement with the municipality. Whether the charter from the •state, or the agreement with the town, be regarded as the contract, in either case, it is certainly entitled to protection against legislation, which would destroy the franchise, or which would, by some alteration of the charter, impairs obligations. The company is entitled to have the clause of the Federal Constitution liberally construed, so as to secure to its franchise every immunity in such respects. It must be remembered that the question here does not turn upon the consideration of any possible destruction of the franchise by the act of the town ; but upon the consideration of whether the company enjoyed freedom from competition and the impairment of the value of the franchise by the grant to others of a similar franchise. The commissioners, in awarding compensation for its franchise, separately and as distinct from the cost or value of lands and construction, have ruled that it had no such immunity and the objection goes to the principle of the appraisal. The claim of the appellant is that the commissioners should have appraised the value to it of the franchise, as though it were inviolable ; not only by direct action, but by such an impairment as would be caused through granting to others a like franchise to supply water. Of course, it is plain that a franchise of the nature claimed might be of immense value, relatively to the cost, or to the moneys actually put into the enterprise by the promoters, and that, in this case, if such were the franchise its value should have been stated at far higher figures.

The Dartmouth College Case, 4 Wheat. 518, while establishing the doctrine that a charter is a contract, cannet help out the general claim of the appellant here. In that case, the legislature attempted to alter the charter of the institution in essential respects, which concerned the number and mode of appointment of the trustees and the creation of a board of overseers, with power of control over the trustees. The charter was held to be a contract with the crown, to the obligations of which the state of New Hampshire had succeeded, and the legislation was held to be a violation of the clause in the Federal Constitution, forbidding a state from passing any law impairing the obligation of contracts. The principle enunciated has been steadily adhered to, despite criticisms, and is not questioned here; but to say that the legislature of a state, in the absence of a reserved right, cannot pass a law which repeals, or which alters, the charter of a corporation by the annexation of some new terms or conditions,, does not require us to say, further, as a necessary, or logical, corollary to the proposition, that a state may not grant a franchise of a similar nature to others, which, in its exercise may impair the value of the former grant; provided that by the terms of the former grant the state had not concluded itself from so doing. The distinction in principle is material between legislative action which impairs directly the obligations of the contract by alteration, or otherwise, and legislative action which, because authorizing a competitive or a rival scheme, may impair the value to its incorporators of the former corporate project. Any other view would tend to support a right to interfere with, or to control, the power of the state, through its- legislature, to exercise its discretion in grants or franchises. We think it is clear upon authority that the statute, under which the appellant was incorporated, being couched in general terms, a charter, secured by compliance with its terms, does not grant to the company an exclusive privilege or franchise to supply water to the town, or village; nor preclude the grant of another charter for a similar franchise. The grantee of the charter takes nothing by implication and the state is not further bound, nor restricted, than can be read in the act This is in accord witli principle and with the authorities. It was said in the case of Proprietors of the Stourbridge Canal v. Wheely, 2 Barn. & Ad. 793, with respect to the plaintiff’s rights, that they were derived from the act of Parliment which authorized the canal, and they could “ claim nothing that is not clearly given them by the act.” Chancellor Kent argued for the view that such grants or franchises might be so extended by implication as to give them due effect, “ by excluding all contiguous competition which could be injurious” through the creation of a rival franchise, or otherwise. 3 Kent’s Com. 459. He had reasoned for it in previous decisions. Ogden v. Gibbons, 4 Johns. Ch. *150, *160; Newburgh & C. Turnpike Co. v. Miller, 5 id. 101. But this doctrine did not prevail. It was distinctly^ overrued in The Charles River Bridge Case, 11 Peters, 548, the doctrine of which latter case this court has repeatedly followed in its decisions; notably in the cases of Auburn & Cato Plank Road Co. v. Douglass, 9 N. Y. 444; Chenango Bridge Co. v. Binghamton Bridge Co., 27 id. 87; Power v. Village of Athens, 99 id. 592; and Syracuse Water Co., v. City of Syracuse, 116 id. 167; 26 St. Rep. 364. The same doctrine was reiterated by the United States supreme court, as late as in Stein v. Bienville Water Co., 141 U. S. 67.

In the case of The Charles River Bridge v. Warren Bridge, 11 Peters, 548, it appeared that the legislature of Massachusetts had passed an act incorporating the plaintiff for a term of years, with power to erect a bridge and to collect tolls, etc.; and that, subsequently, it incorporated the defendant, with power to erect another bridge, practically alongside of the plaintiff’s bridge, and which, after the expenses of its construction had been reimbursed, should be surrendered to the state. The plaintiff charged that the act incorporating the defendant impaired the obligation of the contract between the state and the plaintiff, and was, therefore, repugnant to the Constitution of the United States. It was claimed, in its behalf, that it had acquired an exclusive right in that line of travel, and that the prior legislative acts necessarily implied that the legislature would not authorize another and a free bridge by the side of the plaintiff’s; thus rendering its bridge of no value. The case presented the question in a different-form to the court, which the Dartmouth College case did not cover; inasmuch as there had been no alteration of the charter of the corporation. The opinion of Chief Justice Taney elaborately discusses the question whether there was such a contract on the part of the state, as implied the agreement on its part not to authorize another bridge, which, from being free and contiguous, rendered the plaintiff's franchise of no value. It was held that such an agreement could not be implied, by reason of the settled rule of construction that in charters no rights are taken from the public, or given to the corporation, beyond those which the words of the charter, by their natural and proper construction, purport to convey. As there were-no words which imported such a contract, none could be implied. Mr. Justice Story dissented from the conclusions reached by the-court, in a learned and vigorous opinion; in which he contended,, upou the authority of “the old law,” for such a liberal construction of legislative grants, as would secure by implication to the-grantee the enjoyment of what is granted, and insisted that the-grant to the plaintiff carried with it an exclusive franchise to such a reasonable distance upon the river, as that travel would not be diverted by any new bridge. He cited the decision in the Dartmouth College case as apposite in its application to the case before him; but the argument of that great jurist upon the law and upon the injustice of the other view was without avail to convince a majority óf his associates that the legislative grant should be extended by implication. The cases of Stein v. Bienville Water Supply Company, 141 U. S. 67, and of Syracuse Water Co. v. City of Syracuse, 116 N.Y. 167; 26 St. Rep. 364, are recent expositions of the doctrine, which requires a strict construction of publicgrants of franchises and denies to the grantee anything by implication. Without pursuing further the discussion of the nature of the appellant’s franchise, under its charter, it is our judgment that viewed as a contract, to which the state was a party, there was no grant of a right to supply water to the town, which was exclusive in its nature; or which entitled it to such immunity as would preclude another, or other incorporations for a similar object. The conclusion follows both from the nature of the general act and from the absence of proper words precluding a grant of a similar charter to other applicants.

We, then, come to the consideration of the proceedings had with the town of New Lots and the contract made subsequently to appellant’s incorporation. The proposition is that the method of incorporation under the statute resulted in a common-law contract between the company and the town, protected for its entire term by constitutional law ; by which all the public and proprietary right to furnish the authorities and inhabitants with water was conferred ; and in the undivided and unimpaired exercise of which, during the term of the contract, the company must remain. So far as the proposition involves the construction of the .statute, we need not repeat what we have said; and we need only consider what was the obligation assumed by the town .of New Lots, by virtue of the part taken by it in the proceedings for incorporation. A design of the statute, as before suggested, in prescribing an application by the promoters to the town or village authorities, was to furnish some protection to the community, with respect to the establishment of water works companies. It not only is interested in knowing the facts about the proposed corporation, which is to become empowered to construct water works and to lay pipes in the public streets and places; but it is vitally concerned in knowing the sources from which it is proposed to distribute water to the inhabitants. The provision for its consent to the application, as a precautionary and politic measure, in the interests of the health of the community, is of undeniable wisdom. But how and why shall we infer that the requirements of the statute to the effect that the promoters of the water company shall make a detailed application, and that the application shall be granted by the authorities, to be followed up by incorporation by certificate, result in constituting a contract between the parties, which obligates the town authorities not thereafter to contract with other parties for another supply of water; which, for some adequate reason in the circumstances, might be required ? On its face, the proposition seems to repel. We may concede that the proceedings result in a contract, binding the parties to the observance of all its propositions and entitled to the protection enjoyed by ordinary contracts between individuals; but we cannot spell out from such a contract, and we are unable to infer from it, regarded in the light of the proceedings in which it was made; an agreement that no like contract should ever be made with other persous, or incorporations. Such an agreement would not be within the delegation of any express powers to the municipality; nor would it be warranted by the letter or the spirit of the proceedings; and the dictates of a sound policy would discountenance such an agreement, as militating against the public interests and as discounting, unwarrantably, the public needs and emergencies of the community in the future. The dealings with the town authorities amounted to a proposition to form a company for the purpose of supplying water to the inhabitants from certain sources ; upon which the authorities acted by voting in acceptance thereof. Under the statute, that warranted the formation of a company and authorized it to proceed with its works and the laying of pipes in the streets. The subsequent formal contract regulated the relations of the contracting parties; fixed the number of miles which the company should pipe; limited the price to be charged and in other ways arranged for the working of the contract; but we 'look in vain for an agreement binding the authorities not to make a like grant or contract to, or with others, if the public demand it. The contract is silent on all subjects, except what the company may, or must do. The moral view of the injustice of another similar contract, during the life of. the existing contract, pre-supposes political and social conditions 'rendering a further contract unnecessary, The contract with the appellant was exclusive, only in the sense that no similar one could be made which could infringe its particular property rights, but it did not prevent the town from contracting for a further, or other supply of water. Competition might impair the value of the first contract; but it could not be said that thereby there would be an invasion of the appellant’s franchise, within thé constitutional meaning. In our judgment, there was nothing in the contract relations with the town, which insured the company against a possible competition or rivalry in the future by another company, which should be authorized by the town authorities to be formed to purvey water. The cases of Stein v. Bienville Water Supply Co., 141 U. S. 67, and of Syracuse Water Co. v. City of Syracuse, 116 N. Y. 167; 26 St. Rep. 364, cannot be slighted as authorities. The complainant, in the latter case, held its franchise under express legislative grant; but that fact cannot affect the application of the decision. The contract here was under legislative sanction and the acceptance of its proposition and the agreement by the town cannot be construed any more strongly in favor of the company, than if the franchise rested solely upon the legislative grant. In the first of the two cases mentioned, the city of Mobile had granted the sole privilege of supplying water from a certain source for a term of years and the' agreement was confirmed, subsequently, by an act of the legislature of the state. The defendant was incorporated, afterwards, by an act of the legislature, for the purpose of supplying the city with water from a different source than the one which had been previously designated; and it was held that the previous contract was not impaired, within the constitutional meaning.' It was said that, under the rule in the construction of grants by the public, as settled by authority, it could not be held that “ a grant, under legislative authority, of an exclusive privilege, for a term of years, of supplying a municipal corporation and its people with water, drawn by means of a system of water works from a particular stream or river, prevents the state from granting to other persons the privilege of supplying, during the same period, the same corporation and people with water drawn in a like manner from a different stream or river.” In the Syracuse Water Company's case, it appeared that that company had been incorporated for the purpose of supplying water to the city of Syracuse and its inhabitants, and that that was the only means for such supply possessed by the city. It was claimed that its franchise conferred an exclusive right, which would be invaded if the Central City Water Works Company, with which the city of Syracuse had contracted to furnish the city with water, was permitted to exercise the privilege granted by the contract. The latter company was incorporated under the general act, and this court, in its second division, held that “ the obligation of the contract between the state and the plaintiff, represented by the franchise granted to the latter, was not impaired by the exercise by the defendant company of the privileges granted to it, in the performance of the proposed contract, judge Bradley, who delivered the opinion of the court, reviewed the question of the plaintiff’s rights in the light of adjudged cases and held that the grantee in public grants takes nothing, in respect of the exercise of his franchise, by inference. Except,” he said, “ so far as they are by the terms of the grant, made exclusive, the power is reserved to grant and permit the exercise of competing and rival powers and privileges, however injurious they may be to those taken by the prior grantee.”

The question, which engages our attention, is of great interest and the discussion could be easily prolonged upon the legal principles involved and upon the authorities; but it would not be profitable to continue a discussion, the grounds of which have been gone over, in the one aspect or the other, in the decisions to which reference has been made, as well as in others referred to by counsel; even if the time were at our disposal. The authorities cited by the appellant’s counsel, in support of his position as to the inviolability of the company’s franchise, have not been overlooked. Milhau v. Sharp, 27 N. Y. 611; Mayor, etc., v. Second Ave. R. R. Co., 32 id. 272, and People v. O'Brien, 111 id. 1; 19 St. Rep. 173, decided that the franchise acquired by a corporation by contract with the municipality was irrespective and indestructible at the latter’s hands, whether through the action of its officers, or by legislation. We do not assert to the contrary now, and those cases do not controvert our present views. In none is it held that the constitutional prohibition against the impairment of contracts by legislation reaches beyond their protection from alteration or repeal, without their consent, and prevents the granting to others of similar franchises, which may impair the value of the prior grant. The legislature may not destroy, or confiscate the property and franchise of a corporation; but it is not conceivable that the sovereign power can be restricted in its grants of corporate franchises, within constitutional limits, save by its own express agreement; even though the material consequences may be such as to entail loss, if not ruin, upon existing corporations, through rivalry and competition. Those are risks which, if they cannot be guarded against, are assumed by the grantees. The franchise of the appellant is founded upon the contract which the statute authorized with the town of New Lots. It cannot be taken away, except upon making just compensation; but in estimating its value, in condemnation proceedings, it is not to be regarded as exclusive in its nature. And it is in our view immaterial to the consideration of the question of the value of the franchise, whether it was founded upon the contract with the municipality, or in legislative grant. In either case, as no exclusive franchise was granted in terms, none could be inferred.

The appellant further urges that by force of the provisions of the annexation act of 1886 (Chap. 335, Laws of 1886), its exclusive right to furnish water was affirmed and established. To this view of the act we cannot assent. That act was not intended to and did not operate upon the charter of the appellant. It bore upon the powers of the city of Brooklyn, upon annexation with tthe new territory, and its purpose was to conditionally protect the 'company’s franchise in that event. We have defined its effect in Ziegler v. Chapin, 126 N. Y. 342; 37 St. Rep. 490, when Judge Finch, speaking for the court, said: “The plan formulated by the annexation act thus accomplished two things ; it protected the city, if it chose to purchase, by giving it the power to condemn the company’s franchise as well as its tangible property, which, under the previous acts, it could not have done. Matter of Roch ester Water Commissioners, 66 N. Y. 418; and if the city chose not to buy, the act protected the company by excluding during its charter life the municipal competition.” It was, at the most, a protective measure; induced by a regard of the possible consequences to the water company, if the municipality of Brooklyn should be disposed to take advantage of the situation upon annexation. It did not grant, and appellant’s counsel do not claim that it granted, any franchise to the company ; nor did it enlarge the one possessed. It was simply incidental, as the same counsel say, to the terms and conditions attached to the plan of annexation. But, if the act did not affect the franchise, its provisions were incompetent to make it more extensive, and if it constituted no agreement with the company, which is not and cannot be pretended, then it was not beyond the power of the legislature, subsequently, to repeal the provision and to leave the city free to compete.

In the next place, we will briefly consider the proposition that the condemnation act of 1892, which authorized this proceeding, is unconstitutional and void. The important point, in the argument upon this proposition, is that the principle which forbids the taking of a citizen’s property, except for a necessary public use, requires, for the validity of the legislative act, that the particular public use be designated ; whereby the property becomes impressed with a trust for the beneflt of the public, and that not only this act is defective in that respect, but it gave no opportunity for a judicial determination of the question of the use. In our judgment, however, while it may have been better legislation to have fixed and limited the particular use, for which the city of Brooklyn was authorized to acquire and hold the appellant’s property, the act is valid. ' Throughout, it declares the acquisition to be in the public interest and for the public use. Its scheme suggests that the legislature deemed the matter of the water supply of too great public importance to he left to private enterprise and that it should' become a part of the. great municipal system. The legislature must be presumed to be the best judge of the necessity of public works and improvements ; of how they shall be instituted and of how they should be carried on so as best to subserve public ends. Of the necessity for the exercise of the right of eminent domain, the legislature is the judge ; but whether the use, for which the property is to be taken, is a public use, which justifies the appropriation, is a judicial question, upon which the courts are free to decide. The opportunity for the presentation of that question and for obtaining a judicial determination upon it was distinctly provided for in this act. The act, in the first section, declared that the “ public interest requires the acquisition by the city of Brooklyn, for the public use,” of the properties of the water company, and, in the next section, it provided for the presentation of a petition by the city at a special term of the supreme court; which, after setting forth a description of the properties and franchises and the names of the owners, or of .parties having claims or interests therein, should pray “ that the said city may be authorized to take and hold said property and franchises forever, for the public use, free of all liens and incumbrances, upon making just compensation therefor, etc.” Service of notice of the presentation of this petition was then next provided for, and, in the fifth section, after directing the court, upon the petition being presented, to make an order authorizing the city to take and hold the property for the public use, it is further provided, that “ any person or corporatión having, or claiming, any interest whatever in the said property and franchises, shall have a right to be heard in person, or by attorney, upon the said application, etc.” The application referred to plainly means that of the city, 'upon the presentation of the petition: It can mean nothing else, for that is the only application in question. There was thus afforded the opportunity to raise any objections affecting the right of the city to proceed under the act in the condemnation of the appellant’s property and to have them judicially heard and determined.

The appellant’s other point as to the unconstitutionality of the act is, that it authorized the condemnation of property, which is already devoted to a public use, without designating any different or larger public use to which it is to be applied. We do not think that there is force in this objection. While the purpose of the water works company was public in its nature, it cannot be said to be strictly identical with the municipal purpose. A municipal corporation is a public and governmental agency. It holds property for the general benefit, with a larger scope of use. When acquired by the municipality of the city of Brooklyn, the appellant’s property would become a part of a general system, under a single management and conducted essentially as a public work. If, in order the better to subserve the public use the appropriation of private property is necessary, even though it be already devoted to a similar use, the right to made it is incident to the legislative power and it is necessary for the general good that the right be conceded. All property within the state is subject to the right of the legislature to appropriate it for a necessary and reasonable public use, upon just compensation being provided to be made therefor, and there can be no distinction in favor of corporations whose franchises and operations impart to them a quasi public character. We think it very apparent that the public use, to which the appellant’s property is to be devoted by the provisions of the act, does differ and that it is of a higher and wider scope.

None of the other questions, we think, call for a further expression of opinion, and our judgment is that the decision of the general term was correct, and that its order should be affirmed, with costs.

All concur.

Judgment affirmed.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    The Mission of the Immaculate Virgin for the Protection of Homeless and Destitute Children in the City of New York, Resp’t, v. Michael Cronin, App’lt.

      (Court of Appeals,

      Filed November 27, 1894.)

    Adverse possession—What acts insufficient.
    In case of uninclosed, uncultivated, unimproved and unoccupied land, the fact that plaintiff and its predecessors had claimed title to the tract, surveyed it, marked the boundaries thereof by monuments, from time to time cut trees upon it, and for a few years paid taxes thereon, does not establish an adverse possession, nor, in the absence of an actual or constructive possession, authorize the presumption of a grant from the true owner.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court.

      Abner G. Thomas, for app’lt; Tames F. Swanton, for resp’t.

       Reversing 50 St. Rep. 641.

   Earl, J.

This is an action of ejectment, commenced April 10th, 1889, to recover about thirty acres of land known as lots 4 and 5 of the second division of Rockaway Beach. The land extends along the Atlantic ocean about 1,320 feet with a width back from the ocean of about 900 feet. In 1809 there was a partition proceeding in the court of common pleas of Queens county for the partition among alleged owners of a large tract of land including this land, and in that proceeding this land was set off to Thomas Bannister in the right of his wife Rachel, and it was admitted upon the trial that both parties claimed under that partition. The plaintiff, upon the trial, gave no evidence of any conveyance from or under the Bannisters, and gave no documentary evidence connecting its title with the Bannister title. The only documentary evidence of title it gave was as follows: A deed dated January 28th, 1869, from Benjamin C. Lockwood, Jr., and his mother to Charles Donohue, and a deed from Donohue to the plaintiff, dated January 4th, 1881. There was no proof whatever showing any title in the grantees of Donohue from or under the Bannisters; and so there is no claim that the plaintiff had a documentary chain of title. The defendant claims the right of possession of the land as lessee from a grandson of the Bannisters, and the complaint alleges that he entered into possession of the land May 1, 1887, and he has ever since been in possession -thereof.

The plaintiff claims title in two ways: by adverse possession, and, failing in that, by proof from which the court could presume a grant from or under the Bannisters. We think both claims of title are unfounded. This was uninclosed, uncultivated, unimproved and unoccupied land. The plaintiff and its predecessors had exercised some acts of apparent ownership upon the land. They had claimed title to the land, surveyed it, marked the boundaries thereof by monuments, from time to time cut trees upon it, and for a few years paid the taxes thereon. All these acts, as we have frequently held, fall short of showing adverse possession as defined in the'Code. Sec. 272; Wheeler v. Spinola, 54 N. Y. 377; Thompson v. Burhans, 61 id. 52; Miller v. Long Island R. R. Co., 71 id. 380; Thompson v. Burhans, 79 id. 93; Price v. Brown, 101 id. 669.

The plaintiff cannot claim constructive possession of the land under § 370 of the Code, because no part of the tract was improved, and the trees cut therefrom were not cut for use upon the tract, but for use upon other land at least two miles distant.

The presumption of a grant of the land from or under the Bannisters to some one of the plaintiff’s predecessors rests upon an equally slender foundation. Here there was claim of title for many years, and acts upon the land consistent with and indeed indicative of ownership. But such claims and acts, in the absence of actual or .constructive possession going with them and characterized by them, have never of themselves been held sufficient to authorize the presumption of a grant from the true owner. The plaintiff’s claim of title extends back less than twenty years prior to the defendant’s possession.. Its deeds are all modern, and any title derived from the Bannisters must have been modern as they were living in 1809. If upon such facts as exist here a grant could be presumed, it would be easy for a claimant to land to get around the careful provisions of law as to adverse possession. If he failed to show facts sufficient for adverse possession, he could yet use the same inadequate facts to raise a presumption of a grant. The plaintiff’s counsel places reliance upon the two cases to which he calls our attention, and which we will notice. In Roe v. Strong, 119 N. Y. 316; 29 St. Rep. 504, there was dispute as to plaintiff’s title to upland and the adjacent land under the water of Setauket bay. The plaintiff established his title to the upland bounded by high-water mark on the bay by a chain of title running back more than two hundred years, and he showed a chain of title to the land below high-water mark in front of his upland for more than one hundred years, running back to a deed from Joseph Brewster to Andrew Seaton, dated January 21, 1768, and he showed acts of ownership upon the land covered by this deed running back so far as the memory of living witnesses could go. The land under water originally belonged to the town in which it was situated. The town had nearly two hundred years before the trial of that action conveyed away the adjacent land under water, being all the land it owned on'Setauket bay, except the land covered by the Brewster deed, making a boundary upon the land covered by that deed. Under such circumstances, with others not here mentioned, this court held that a deed from the town to Brewster or some one under whom he held should be presumed, and the presumption was made in favor of the owner of the upland. That case is widely different from this. In McRoberts v. Bergman, 132 N. Y. 73; 43 St. Rep. 559, the land in dispute was a sand beach on the lower bay of New York adjacent to the plaintiff’s upland, and the beach was occupied and used in connection with the upland, and as part of the same farm, the beach and the upland consisting of a single lot. The plaintiff proved a chain of title to the lot running back for much more than one hundred years. Whatever presumptions were indulged in there furnish no precedent for' this case.

We are, therefore, of opinion that the plaintiff failed to show a title to the land in question sufficient for the maintenance of this action, and that the judgment should be reversed and a new trial granted.

All concur. Judgment reversed.


author: Peckham, J.

text:
    In the Matter of the Charges of Cornelius J. Ryan Against Charles E. Opdyke, Jr., an Attorney.

      (Court of Appeals,

      Filed November 27, 1894.)

    Attorney—Disbarment.
    Whenever a case is presented, which shows that an attorney-at-law has been guilty of dishonest conduct in his professional character, and is properly proved, it is the duty of the court to administer the proper punishment.
    Appeal from order of the general term of the supreme court in the fifth judicial department, entered upon an order removing Charles E. Opdyke, Jr., from the office of attorney and counselor at law for deceit and fraud in the practice of his profession.

      Edwin Hides, for app’lt; Martin J. Keogh, for resp’t.

      Affirming, 40 St. Rep. 988.

   Peckham, J.

Charges against the appellant, an attorney at law, were preferred to the general term of the supreme court in the fifth departmént, and action thereon was asked for. The court by an order to show cause summoned the accused to appear before it, and the charges wére denied ‘by him upon his appearance pursuant to such order. Thereupon the court referred the matter to a referee to take the evidence in regard to the issues thus formed and to report the evidence taken together with his opinion thereon to the court. Hearings before the referee were subsequently had and the evidence submitted to him. This evidence he transmitted to the court, together with a formal report, in which he made certain findings of fact which he regarded as established by such evidence, and he also transmitted a formal opinion with the evidence, in which opinion he stated the general result of his examination of the evidence and that the charges he mentioned therein had been proved to his satisfaction.

The whole question came before the supreme court at a general term upon the report of the referee, and his opinion and the evidence taken by him, and the court after hearing the parties affirmed the referee’s report and removed the accused from his office of attorney and counselor at law. From the order of removal the attorney has appealed to this .court.

Upon the hearing before us his counsel has claimed that it was the right, and the duty of this court to review all questions of fact arising upon conflicting evidence, and he has cited the case of Inre Eldridge, 82 N.Y. 161, as authority.

In that case § 1337 of the Code of Civil Procedure does not appear to have been cited by counsel or court and its provisions in this regard may have been overlooked.

We have, however, in this case carefully read the record which has been presented to us and have given full attention to all the evidence that was taken before the referee and returned by him to the general term, and we are prepared to say that its perusal satisfies us that the referee and the general term made no mistake' in coming to the conclusions they did. That portion of his account as presented by the defendant and called “ Schedule A ” in the action which he commenced against the firm of. J. 0. Spencer, .Son & Co., taken in connection with the examination and cross-examination of the defendant himself in regard to it, leaves no rational doubt in our minds that such account was a false one, made up by the defendant herein and for the purpose of enlarging his claim against the firm.

We are also of the opinion, arrived at from a perusal of the evidence in the case, that the defendant did not tell the truth in his complaint in that same action against the firm, and that the schedules annexed to the complaint and referred to therein as forming part thereof did not show a truthful statement of the accounts or of the services rendered by him, and that, in fact, he had not rendered the services charged for in a large portion of such schedules. His testimony in regard to these matters in the subsequent trials of the actions brought by and against him and tried before referees, was also, in our opinion, false, and we think he was not simply mistaken.

If such facts were properly proven before the referee and sent by him to the general term and acted on by that court, it is clear that the order made by the court disbarring the defendant was entirely justified.

We think the proof was ample upon these points and called for the conclusions of fact arrived at by the referee in his opinion.

The testimony has been examined in this court without prejudice against the defendant and with a most anxious desire upon our part to take as chkritable a view of the evidence as could fairly be reconciled with the proper discharge of our duty in the matter. We are fully impressed with the great gravity of the case and of the painful consequences to defendant which must follow our affirmance of the order of the supreme court. At the same time we cannot forget that it rests with the courts to aid .and further the efforts on the part of the profession to maintain the honor and integrity of its own members, and whenever a case is presented which shows that an individual member of that profession has been guilty of dishonest conduct in his professional character, it is the duty of the court, when the case is properly proved, to administer the proper punishment. This is not only justice to the profession itself, but it is a protection to the public' which ought to be justified in its belief that any one holding a license to practice in the courts of this state is .at least of good moral character and fit to be intrusted with the duty of protecting: the interests of others.

The order of the supreme court should be affirmed.

All con'cur. Order affirmed.


author: O’Brien, J.

text:
    Village of Pelham Manor, App’lt, v. The New Rochelle Water Company, Resp’t.

      (Court of Appeals,

      Filed November 27, 1894.)

    Water Works Company—Powers.
    The authority, conferred by § 9, art. 7, of chap. 566 of 1890, may be exercised by a water works corporation, wherever it is necessary to lay its pipes in the street of an adjoining town or village in order to execute effectually and pioperly the purpose for which it was created.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order which affirmed a judgment in favor of defendant entered upon a decision of the court dismissing the complaint on trial at special term.

      Jabish Holmes, Jr., for app’lt; Martin J. Keogh, for resp’t.

       Affirming, 51 St. Rep. 369.

   O’Brien, J.

The equitable relief which the plaintiff sought to obtain in this action was to restrain the defendant from the use of one of the highways within the corporate limits of the plaintiff and known as the Boston Turnpike Road. . This highway was. under the exclusive care and control of the plaintiff’s board of trustees. The defendant is a corporation organized under chapter 737 of the Laws of 1873, for the purpose of supplying the village of New Rochelle with water, and it now exists under the act of its creation, which subsequently became incorporated into and a part of the general statute on this subject Laws of 1890, ch. 566. art. 7, § 2; Cameron v. New York & Mount Vernon Water Co., 133 N. Y. 336; 45 St. Rep. 212: The village of Pelham Manor and the village of New Rochelle are adjoining villages, and the claim of the plaintiff is’that the defendant had no power or authority to lay down its water pipes or mains in the highway in question or use it for the purpose of executing the purpose of its incorporation, without the plaintiff’s permission, expressed through its constituted municipal authorities. This permission was not obtained, and if it was necessary the plaintiff had the right to protect its streets and highways from any unauthorized interference on the part of the defendant. .Among the powers conferred upon the defendant by the acts of 1873 and 1890, above referred to, is the authority “ to lay and maintain their pipes and hydrants for delivering and distributing water in any street, highway or public place of any town or village in which it has obtained the permit required by § 80.” This provision authorized the defendant to use the streets or highways of New Rochelle, but not of any other village or town. But, by another section of the act, water companies are also authorized “ to lay their water pipes in any streets or avenues or public places of an adjoining town or village to the town or village where such permit has been obtained.”

It was under this last provision that the defendant claimed the right to occupy the highway in question. The defendant’s position lias been sustained by the court below, and obviously the controversy turns upon the proper construction of this statute. The contention of the plaintiff is that the statute only permits the defendant to lay its pipes in the streets of an adjoining town when it is necessary to reach the village granting the permit from the source of supply. In other words, that when an adjoining-town intervenes between the source of supply and the village or town to be supplied then the company may use the streets of the adjoining village or town, but not otherwise. It is said in support of this position‘that the statute could not have intended that a company such as the defendant should have the right to,use the streets of an adjoining town to any extent that it thought necessary unless in passing from the source of supply to-the point of distribution. The defendant had no franchise to supply the plaintiff with water, and the legislature did not anticipate any abuse of the power to lay pipes in an adjoining town by a corporation that could not carry on its operations there or receive any revenue from such town or its inhabitants. The question is, whether it was not the intention of the legislature to permit the defendant to do what it did when it became necessary in order to effectually and properly execute the purpose for which it was created. The defendant was bound by the conditions of its incorporation and by contract to supply the village and town of New .Rochelle and the inhabitants thereof with pure and wholesome water, and the trial court has found that in order to perform that duty it became necessary to lay its pipes under the road in question. What the defendant did was to use the road for about five bunded feet in order to conduct- two of its mains which terminated in “ dead ends ” near the boundary line of the two towns. This connection completed the circuit and added greatly to the pressure, besides furnishing running instead of stagnant water. So long as the defendant was without power to add to its revenues by furnishing water to the plaintiff or any of its inhabitants no great mischief is to be apprehended from any extensive use of the streets by the defendant. But the legislature evidently anticipated that a water company in performing its functions of supplying the town, and every part of it which granted the permit, with water might, for some reason, find it necessary to cross the boundary line of an adjoining town and úse its highways, not for the purpose of supplying that town, but for the purpose of properly and effectively executing the purpose of its creation. Such necessity has been found in this case as matter of fact by the trial court, and hence the pefmission of the municipal authorities who had charge and control of ■ the highway was not necessary. To hold that the power to go into án adjoining town was limited to cases where such town intervened between the point "of supply and distribution would be adhering too closely to a literal or grammatical construction and would ignore the public and beneficial purpose of the statute. In this case it became necessary, in order to supply New Rochelle with pure and wholesome water, to cross the town line and use a highway within the plaintiff’s corporate limits for five hundred feet. We think that the statute, fairly and reasonably construed, conferred the power upon the defendant, although the point in the adjoining town where the extension was made did not intervene between the source of supply and the place of distribution.

The judgment should, therefore, be affirmed, with costs.

All concur. Judgment affirmed.


text:
    The United States Vinegar Company, Resp’t, v. John Schlegel, App’lt.

      (Court of Appeals,

      Filed November 27, 1894.)

    1. Pleadings—Answer.
    A defendant has the right to interpose all the defenses he has, whether they are, or are not, consistent with each other.
    2. Corporation—Acts and declarations oe promoters.
    Acts and declarations of promoters, never adopted or acted upon by the corporation, cannot be used to defeat contracts made with, or obligations incurred by, individuals to the corporation.
    3. Same—Foreign—Recognition.
    So long as a foreign corporation is recognized by the courts and authorities of its own state, it is entitled to the same recognition here, unless it was formed for purposes illegal here or was doing acts prohibited by the laws of this state to its own citizens and corporations.
    4. Same—Estoppel.
    A party, who has dealt and contracted with another as a corporation, is estopped from denying its corporate existence.
    5. Appeal—Evidence-
    Where evidence, tending to prove a material fact in issue, which requires proof of other facts to make it complete, is received under objection, and such facts have not been supplied, its presence in the record is no ground for reversal in the absence of a subsequent motion to strike it out.
    Appeal from judgment of the general term of tbe supreme court in the first judicial department, entered upon an order made, which overruled defendant’s exceptions and ordered judgment in favor of plaintiff on verdict directed by the court.

      Benno Lowey, for app’lt; S. B. Ten JSJycIc, for resp’t.

       Affirming 51 St. Rep. 453.

   O’Brien, J.

The trial, court directed a verdict for the plaintiff for the amount which the defendant had duly subscribed as a shareholder of the plaintiff’s capital stock, to recover which the action was brought. There is no dispute about the fact that the defendant did subscribe in writing for twenty shares of the capital stock, for which hé agreed .to pay $2,000. The plaintiff, before this action was commenced, had incurred debts and become insolvent, and subsequently went into the hands of a receiver. The defense stated in the answer is substantially that the plaintiff was incorporated for the illegal purpose of combining all the dealers in vinegar, to the end that the production could be limited and controlled, and the price artifically enhanced, and that the defendant was induced by fraud to subscribe for the stock. It is also claimed that the plaintiff never became incorporated. In brief, the defendant’s position is, first, that the plaintiff was incorporated for an illegal purpose, and secondly, that it has not been incorporated at all. These defenses are, of course, inconsistent with each other, but the defendant had the right to interpose all the defenses that he had, whether they were consistent with each other or not. It is unnecessary to make further reference to the defense of fraud, as there was no evidence on that question to submit to the jury, and no request was made by the defendant’s counsel to have it submitted. There was no proof of any corporate act pointing to any illegal purpose or object in the formation of the company. The proof on that point consisted of a printed prospectus issued by certain promoters of the company, a blank form of contract to be used, and numerous acts and declarations made by them before the corporation was created. It is not necessary to inquire whether these documents or these acts and declarations furnish any evidence of an illegal purpose on the part of any one. It is quite sufficient to observe that, so far as the record shows, they were never adopted or acted upon by the corporation itself, and, therefore, cannot now be used to defeat contracts made with, or obligations incurred by, individuals to the corporation. Munson v. S., G. & C. R. R. Co., 103 N. Y. 58; 3 St. Rep. 31. It is suggested, as a phase of the defense, that the promoters deceived the authorities of the state of Illinois as to their'real purpose in forming the corporation, and in that way procured them to file the necessary papers and take the necessary steps to give the plaintiff a corporate existence. The suggestion has little if any support in the evidence, but even if the fact had been established, it would constitute no defense to this action. That state must be left to vindicate its own honor and dignity. If it be true that its authority has been invoked and its laws abased for the purpose of creating and fostering a corporation that is detrimental to public interests, it has ample power at any time to proceed against it and decree its dissolution. But so long as the plaintiff exists and is recognized by the courts and authorities of that state, it is entitled to the same recognition here, unless it appears that it was formed for purposes illegal here, or was doing acts prohibited by the laws of this state to its own citizens and corporations. Demarest v. Flack, 128 N. Y. 205; 40 St. Rep. 383.

A foreign corporation, such as the defendant claims this to be, may be driven from the state by public authority, but it does not follow that for such reason all the contracts that private individuals have made with it or the obligations that they may have incurred to it or its creditors, are invalidated. The certificate of incorporation filed by the corporators-with the secretary of state of Illinois, in March, 1887, declare that the object for which the corporation was formed is to buy, sell, deal in and handle vinegar. There, was certainly nothing illegal in that object, and if the corporation afterward departed from the purpose of its creation and entered upon projects which were illegal, this misconduct must be corrected in some other way than in a suit against the defendant to recover his subscription. That might furnish good grounds for a suit by the People to vacate the charter, but no defense whatever to a stockholder when sued for his subscription. The only substantial question in the case is whether the plaintiff has proved its existence as a corporation. - Its corporate character is properly averred in the . complaint. The plaintiff’s counsel suggests that the fact is admitted, since the defendant in his answer has denied it only on information and belief. Under § 1776 of the Code, a mere denial in any form is not sufficient to raise an issue on such a question. The answer must contain an affirmative allegation to the effect that the plaintiff is not a corporation, and in this case the answer does contain such an allegation in connection with other matters. The plaintiff was, therefore, bound to .prove its incorporation. The certificate of the secretary of state of Illinois was produced, which stated that the plaintiff was duly incorporated. Also a certificate signed and acknowledged by five persons described as incorporators, duly filed in the same office. But there was no proof that by the law of Illinois these papers established the plaintiff’s corporate character, and hence, this proof was not sufficient. There was proof, however, of the user by the plaintiff of corporate powers, and' two written contracts were produced executed by the plaintiff and defendant after the subscription was made. In both of these instruments it was stated that the plaintiff was a.corporation. They related to the manufacture and sale of vinegar, and contained, with considerable detail, mutual stipulations to be observed boy each party. The defendant having dealt and contracted with the plaintiff as a corporation, that fact furnished some evidence of the plaintiff’s corporate existence, or, at least, estopped the defendant from denying it.

Phœnix W. Co. v. Badger, 67 N. Y. 298; Com. Bk. v. Pfeiffer, 22 Hun, 334; S. C. aff’d, 108 N. Y. 242-252; 13 St. Rep. 506; Eaton v. Aspinwall, 19 N. Y. 119; Buffalo & A. R. R. Co. v. Cary, 26 N. Y. 75

These contracts were acts performed and admissions by both parties which necessarily assumed the plaintiff’s corporate character, and, as against the'defendant, operated to prove that plaintiff was, as stated in the agreement, a corporation, upon a principle somewhat analogous, that acts done by a corporation which require the existence of other acts to make them legally operative, are presumptive proof of the latter. Demings v. Supreme Lodge, etc., 131 N. Y. 522; 43 St. Rep. 872; Pringle v. Woolworth, 90 N. Y. 510; Bank of the U. S. v. Dandridge, 12 Wheat. 79.

The plaintiff’s corporate character was, therefore, prima facie established, and, as nothing was shown by the defendant in contradiction, there was no_ question on that issue to submit to the jury. The documents from the office of the secretary of state of Illinois were received in evidence against the defendant’s objection and exception. In order to give them proper effect they should have been supplemented by proof of the law of that state, but they were competent as part of the chain of proof on the issue. When the plaintiff failed to follow them up by proof of the law which gave them efficacy, a motion to strike out was the defendant’s remedy, and no such motion was made. When evidence tending to prove a material fact in issue is received under objection, and which requires pi’oof of other facts to make it complete, which have not been supplied, its presence in the record is no ground for reversal in the absence of a motion subsequently to strike it out. The failure of the plaintiff to supplement the documentary evidence with proof of the law should have been raised by such a motion, as the ruling admitting the papers was correct when made. There are no other questions in the case that would warrant a new trial or that require any special notice.

The judgment must be affirmed, with costs.

All concur. Judgment affirmed.