EMERY, V. C.

(Syllabus by the Court.)

Bill by the inhabitants of the township of Franklin against the Nutley. Water Company for an injunction. Heard on motion for the preliminary writ, on bill, answer, and affidavits. Motion granted.

W. Skinner and Jos. Coult, for complainant. B. F. Vail and Jos.

E. Munn, for defendant.

EMERY, V. C. The bill in this case is filed by the inhabitants of the township of Franklin, in the county of Essex, against the Nutley Water Company, to restrain the defendant from laying its water pipes in certain portions of streets of the township without obtaining the consent of the township committee, and from obstructing the streets for this purpose without such consent. The answer admits the intention of the water company to lay the pipes in these streets without obtaining such consent, andclaims the right to lay the pipes without the consent of the township committee, and to obstruct the streets to the extent necessary for this purpose. This obstruction, as the defendant claims, will not be more than 10 days' obstruction on one side of the street, and will not be sufficient to prevent travel on the remaining portion of the streets. On this application for preliminary injunction, there are, as I consider the case, two questions involved: First, whether the company is required by statute to obtain the consent of the township committee to laying these pipes; and, if such statutory consent is imposed, then, second, whether the township, for the protection of this statutory right, is entitled to a preliminary injunction.

As to the first question, I consider it clear that the statute under winch the water company was organized and is operating expressly requires the previous consent of the township committee. The water company was incorporated in 1889, under the act entitled "An act for the construction, mainte nance and operation of water works for the purpose of supplying cities, towns and villages of this state with water," approved April 21, 1876 (P. L. 318; Supp. Revision; 650, etc.) and the act of March 5, 1884 (P. L. 42; Supp. Revision, 053), amending the same. This act, thus amended, authorized, by its first section, the formation of a company for the purpose of constructing, maintaining, and operating water works, in any city, town, township, village, or seaside resort in this state having a population of not more than 15,000 nor less than 500 inhabitants, and for the purpose of supplying such city, town, township, village, or seaside resort and the inhabitants thereof with water. The second section of the act (Supp. Revision, 650) requires the persons desirous of forming the company to execute a certificate stating the corporate name of the company, the amount of the capital stock, term of existence, number of directors, the managers of the company for the first year, and the name of the town, city, or village in or for which such works are to be constructed and the business of the company carried on. This section then further provides: "Such certificate shall be filed in the office of the secretary of state, together with the consent, in writing, of the corporate authorities, If any, of the town or city proposed to be supplied with water." Section 3 provides: "When such certificate and consent shall have been filed as aforesaid, the persons who shall have signed and acknowledged the same, and their successors, shall be a body politic and corporate, and shall have power as such, to take and divert any and all such springs and streams of water and build, erect, alter, repair, enlarge and maintain all such reservoirs and works and lay down all such pipes and conduits for water, at such times and in such places as shall be necessary and proper to enable said corporation to carry into effect the purposes of its incorporation." This section does not expressly regulate the right of the company in the public streets or highways; and as to this subject section 12 (Supp. Revision, p. 652) provides "that such company be and they are hereby fully authorized and empowered to lay their pipes beneath such public roads, streets, avenues and alleys, as they may deem necessary for the purposes aforesaid, free from all charge to be made by any person or persons or body politic whatsoever for said privilege, and also such hydrants at the crossing or intersection of said streets or alleys; provided, that the said pipes shall be laid at least three feet below the surface of the same, and shall not in any wise unnecessarily obstruct or interfere with the public travel, or damage public or private property; and provided, that the consent shall be obtained of the corporate authorities, if any there be, of any town through which the same may be laid." The water company was incorporated in 1889 pursuant to the provisions of the second section, its certificate containing merely the particulars especially required by the section, and to this certificate was annexed the consent of the township committee of the complainants to the incorporation. No terms or conditions were imposed by the township in giving its consent. Subsequent to the incorporation, and previous to March, 1895, the water company, before laying its pipes in any of the streets or roads of the township, applied to the township committee for its consent, and procured this consent before laying its pipes. It applied again in March. 1895, for permission to lay its pipes in certain streets, for the purpose of connecting with the mains of the East Jersey Water Company; but, this permission not having been granted, the water company now claims that the consent or permission applied for is not necessary, and it had placed its pipes along the disputed streets for the purpose of laying them, when it was enjoined by the ad interim stay ordered on filing the bill. In addition to the statutory right of previous consent claimed to have been conferred by the provision in the twelfth section of the water act, the township also claims additional statutory right to previous consent by virtue of Act 1893, c. 70 (P. L. 130), increasing the power of township committees. This act provides (section 1, par. 6) that the township committees of the several townships of this state shall thereafter have power, among other things, "to lay and regulate, or prohibit the laying of water or gas or sewer pipes in or under the streets and roads or any part thereof in said township." And the act further provides (section 2) that to enforce these provisions the township committees may pass such ordinances as they shall think proper to carry into effect the powers conferred for this and other purposes ofthe act. The township committee, as appears by the affidavit to the bill, have passed an ordinance regulating the use of the streets under this act, and declaring that no person or persons shall use or obstruct the streets, lanes, alleys, or public grounds of the said township, or break up or displace any pavement therein for the purpose of placing water pipes or making connection therewith, without the consent of the township committee first had and obtained. The complainant complains that, even if their previous consent is not required under the twelfth section of the water act incorporating water companies, yet the act of 1893 is to be considered as a further legislative modification of the right of the water company to lay pipes in townships after the passage of this act, and that the act of 1893, with the ordinance thereunder, gives the complainant an express statutory right of previous consent.

Upon the question of the statutory rights of the complainant and defendant with reference to this consent of the township committee, my opinion is that the second proviso of the twelfth section applies to the case, and that, by the statute incorporating the defendant, and which it accepted as its charter, the consent of the township committee must therefore be obtained previous to the laying of the pipes in the streets in question. The contention of defendant is that the consent of the township to the incorporation of the company, given under the second section of the act, when filed with the certificate, gave it, by virtue of the third section, the power to lay its pipes under the streets of the township, without any further or additional consent. But it is clear, I think, that the consent of the township to the formation of a company under the second section relates to a different object from the consent required under the twelfth section, and the consents specified in the two sections are treated as distinct and different consents in Davis v. Town of Harrison, 16 N. J. Law, 84. The legislature having expressly made the consent of the municipality a condition precedent to the exercise of the power to use the public streets granted to the company in the twelfth section, and the consent to the incorporation specified in the second section being beyond any question applicable to some objects other than the conditions for the use of the streets by the company, I have no right to conclude that the express consent of the twelfth section embraced only matters included by implication in the consent under the second section, and must therefore be eliminated from this section of the statute by judicial construction. That the word "town" in this proviso of the twelfth section includes townships is established by the rule laid down in Broome v. Telephone Co. (Sup. Ct. 1887) 49 N. J. Law, 624, 9 Atl. 754, and the cases there cited. The previous consent of the township committee being thus required as a statutory condition of exercising the defendant's franchise upon the highways under the committee's charge, an injunction against the use without such previous consent seems to be the only way of affording a full, complete, and adequate remedy to the township for enjoyment of their statutory rights. Neither an indictment nor an action of ejectment are effectual remedies for securing to the township committee the full benefits of the right of previous consent which the legislature has conferred on them for public purposes and upon public trusts. The same previous consent of the authorities is required in the laying of gas pipes (Revision, p. 462, § 17), and for the operation of trolleys (P. L. 1893. c. 172, § 1), and of street railways (March 14, 1893, P. L. 302; May 16, 1894, P. L. 374). and in relation to other franchises which require the use of the public streets. For the full protection of the statutory rights of the municipalities a preliminary injunction is necessary, and in this respect the case rests upon the same basis as the right of the court of equity to interfere by preliminary injunction where a public company, under cover of statutory authority, attempts to appropriate the lands of another without complying with the legal conditions precedent, either constitutional or statutory. Ross v. Railroad Co., 2 N. J. Eq. 422; Browning v. Transportation Co., 4 N. J. Eq. 47; Higbee v. Railroad Co., 19 N. J. Eq. 276; Morris Canal & Banking Co. v. Mayor, etc., of Jersey City, 26 N. J. Eq. 294. In each of these cases a preliminary injunction was granted, and this exercise of the jurisdiction was approved in Hart v. Leonard (Err. & App. 1886) 42 N. J. Eq. 417, 419, 7 Atl. 865. The right of a court of equity to interfere by injunction in cases where consent is required by statute is also recognized by the following cases: Mayor, etc., of Davonport v. Plymouth, etc., Tramways Co., 52 Law T. 161, cited Mews Supp. Dig. 989, where a preliminary injunction was granted; Wandsworth Board of Works v. United Telephone Co. (Ct. App. 1884) 13 Q. B. Div. 904. See opinions of Brett, M. R., p. 907, and Bowen, L. J., p. 924, as to right of injunction if consent is required by statute, without regard to amount of injury; Township of Plymouth v. Chestnut Hill & N. Ry. Co. (Pa. Sup.) 32 Atl. 19. Where the statutory right is clear, it seems to me it would imperil the public control of highways and deprive municipalities of the powers and advantages intended to be given by statutes, if, on the mere claim of right to occupy the streets without consent, this court should decline to interfere pending the final determination upon the claim.

A preliminary injunction restraining interference pending final hearing is the more equitable in this case, for the reason that hitherto the company has always applied for this consent, and has never laid its pipes without obtaining the consent. This practicalconstruction of the law, made by the parties while granting and receiving valuable privileges, upon the basis of the right and necessity of the municipal consent, should be continued, I think, until the right is, determined on final hearing. The cases relied on by the defendant's counsel,—Raritalt. Tp. v. Port Reading R. Co., 49 N. J. Eq. 11, 23 Atl. 127 (Ch. McGill, 1891), and Ameri can Union Tel. Co. v. Town of Harrison, 31 N. J. Eq. 627 (V. C. Van Fleet, 1879),—differ from the present case in that no right of consent was conferred by the stature in either case, and in the first case an indictment for the alleged obstruction was, under the circumstances of the case and the previous decisions of the court, an effective remedy. In the latter case, the township had only the right of designating the route or location of the poles, without the right to prohibit or refuse consent or impose conditions. Where a constitutional or statutory right of previous consent is conferred upon the municipality, its authorities are entitled to the right of affixing such lawful conditions as the public interests require, before the exercise of the right to lay the pipes, which is only conferred upon the company on the condition of previously procuring such consent.

Nor does the granting of a preliminary injunction in this case for the purpose of securing these municipal rights disregard the rule emphasized in Hagerty v. Lee (Err. & App. 1889) 45 N. J. E'q. 255, 17 Atl. 826, that a preliminary injunction will not be granted where either the complainant's right is in doubt, or where the injury which may result from the invasion of that right is not irreparable. That case, and the cases cited in the opinion, were all cases where the injury was to private property or interest. They do not, as I understand the rule, apply to cases where the defendant is attempting to exercise statutory powers without complying with express and clear conditions precedent. In this class of cases the right has always been protected by preliminary injunction. Ross v. Railroad Co., and other cases, supra.

I should add that in granting this injunction I proceed upon the basis that the bill is to be treated as a bill to enforce the law requiring consent of the township. There is one allegation in the bill that this law under which the defendant claims its right to lay pipes in the streets is unconstitutional, and this claim was insisted on at the argument, by counsel for complainant. But the application for preliminary injunction, based on the theory that the defendant, with the consent of the township authorities, had been for several years appropriating portions of the street without any legal existence or claim of right, would evidently involve considerations different from those upon which I have relied in treating the bill as a bill to enforce, and not to set aside, the law. I will advise that an injunction issue against laying the pipes without the complainant's consent, on the terms that if the defendant desires to appeal the complainant consent that the appeal may be heard at the present term.