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Queens County Water Co. v. O'Brien

Supreme Court of New York, Appellate Division

March 5, 1909

QUEENS COUNTY WATER CO.
v.
O'BRIEN, COM'R, ET AL.

Appeal from Special Term, Nassau County.

Injunction by the Queens County Water Company against John H. O'Brien, commissioner of water supply, gas, and electricity, for the City of New York, and others. From an order denying a motion for an injunction, and from a judgment entered on overruling a demurrer to the complaint, plaintiff appeals. A motion to dismiss the appeal is denied, and the judgment and order appealed from are reversed.

[115 N.Y.S. 497] Henry De Forest Baldwin, for appellant.

Edward H. Wilson (James D. Bell, on the brief), for respondents.

Argued before HIRSCHBERG, P.J., and WOODWARD, RICH, JENKS, and MILLER, JJ.

WOODWARD, J.

The plaintiff, in its capacity as a taxpayer, brings this action to restrain the defendants from taking certain lands and water rights, comprising a strip of land about 9 miles long and about 200 feet wide, extending from Clear Stream to Massapequa in Nassau county, on the ground that such taking would constitute an illegal act on the part of the defendants, in that they have not secured the approval of the State Water Commission as required by chapter 723, p. 2022, of the Laws of 1905. Other objections are urged, going to the private rights of the corporation, but it does not appear to be necessary to enter into their discussion on this appeal. The defendants demurred to the complaint, on the ground that " it appears upon the face thereof that there is a proceeding, other than this action, pending between the same parties for the same cause." The learned court at Special Term overruled the demurrer, but dismissed the complaint on the ground that it did not state facts sufficient to constitute a cause of action. A motion was made in the action for an order of injunction, which motion was denied, and the plaintiff appeals from this order; and there is likewise a motion pending before this court to dismiss the appeal, it being urged on the part of the defendants that as the city of New York has become invested with the title to the real estate, under the provisions of the Greater New York Charter, that it is not competent for the plaintiff to question the right to pay for the same. The respondents question the ground of decision on the part of the learned court at Special Term, and concede that the complaint does state a cause of action, but insist that the demurrer was well taken, and that the judgment dismissing the complaint, though granted upon a wrong theory, should be modified and placed upon the ground stated in the demurrer, and, as thus modified, affirmed.

The learned court, in holding that the complainant did not state a cause of action, construed section 2 of chapter 723, p. 2023, of the Laws of 1905, and held that it had no application to this strip of land, 9 miles in length and 200 feet wide, which the defendants are seeking to acquire for the city of New York as a part of its waterworks system. The section provides that:

" No municipal corporation or other civil division of the state, and no board, commission or other body of or for any such municipal corporation or other civil division of the state shall, after this act takes effect, have any power to acquire, take or condemn lands for any new or additional sources of water supply, until it has first submitted the maps and profiles therefor to said commission as hereinafter provided, and until said commission shall have approved the same."

It is conceded that the commission has not approved of the maps and profiles in connection with the land to be taken by the defendants, but the learned court in disposing of the case points out that [115 N.Y.S. 498] the city of New York has for many years been maintaining a " complete water system, consisting of conduits extending from the Kings county line at Ridgewood to a point near the Suffolk county line at Amityville," in the county of Nassau, " and as tributary to these conduits the city has acquired many ponds, reservoirs, rights along streams, and other appurtenances to a complete water system," and says:

" The lands which are proposed to be acquired in the proceeding sought to be enjoined are within the territory above described from which the city, long prior to the enactment of chapter 723 of the Laws of 1905, has derived its water supply. This being so, the power of the city to acquire these lands is not limited by section 2 of that act, and the city may condemn them without first obtaining the approval of the State Water Supply Commission."

In support of this broad construction, the court says that:

" The word ‘ sources' has a geographical significance, and in that sense means the area or territory which contains the watershed or watersheds of the natural bodies of water, whether lakes, rivers, or subterranean streams from which the water supply is derived."

We find no warrant in the statute, or in the ordinary use of language, for this construction of the word " sources." Webster defines the word " source" -apart from an obsolete use:

" The rising from the ground, or beginning, of a stream of water or the like; a spring; a fountain. That from which anything comes forth, regarded as its cause or origin; the person ...

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