Opinion
09-24-1895
INHABITANTS OF TOWNSHIP OF SADDLE RIVER v. GARFIELD WATER CO.
Cornelius Doremus, for the motion. Addison Ely, opposed.
Bill by the inhabitants of the township of Saddle River, in the county of Bergen, against the Garfield Water Company, to restrain defendant from laying its pipes without plaintiffs' consent. On motion for preliminary injunction. Denied.
Cornelius Doremus, for the motion.
Addison Ely, opposed.
EMERY, V. C. The preliminary injunction in this case must be denied upon the ground that the depositions taken under the rule make it doubtful whether upon final hearing relief can be granted to the complainant. The question they fairly raise is whether the township committee, in exercising the public right, given to it by statute, of requiring its consent to the laying of pipes by the defendant in the streets of the township, is not, in view of the facts and circumstances of this particular case, really endeavoring to require the water company to compensate the township, in some form, for the privilege of laying the pipes in the street. The act under which the defendant was incorporated (Supp. Revision, p. 652, § 12), provides "that such company shall be authorized to lay their pipes beneath such public roads, streets," etc., "as they may deem necessary, free from all charge to be made by any person or persons or body politic whatsoever for said privilege: * * * 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." If the township is using its right to consent for the purpose of imposing a charge on the company for the privilege, the township would have no standing in a court of equity for an injunction to protect it in its statutory rights, but would be left to its legal remedies. The depositions as to the purpose of withholding consent show a state of facts upon which I am unwilling, on an application for preliminary injunction, to decide against the defendant's contention. Their case, as presented, makes it, at least, doubtful whether the complainants can succeed on final decree; and the complainants have not made, on their part, a case sufficiently free from difficulty or doubt on this point to order a preliminary injunction.
As to the necessity of obtaining the consent of the township committee under the statute, my decision in Inhabitants of Franklin Tp. v. Nutley Water Co. (June, 1895; N. J. Ch.) 32 Atl. 381, governs this case, at least upon this application. This case was followed by Chancellor McGill in Attorney General v. Atlantic Highlands, etc., Electric Ry. Co. (July, 1895; N. J. Ch.) 32 Atl. 680; and I cannot concur in the views expressed by Vice Chancellor Van Fleet in Atlantic City Waterworks Co. v. Consumers' Water Co. (1888) 44 N. J. Eq. 427, 15 Atl. 581, that the consent is not necessary. I find upon an examination of the record in this case that the question of the necessity of the consent was not involved in the decision of the case, for it appears that in the ordinance of Atlantic City, consenting to the incorporation of the defendant, the Consumers' Water Company, the city expressly granted the right to lay the pipes in the streets of the city on certain conditions mentioned in the ordinance. As was held in Davis v. Town of Harrison, 46 N. J. Law, 79, 83, et seq., the consent to the incorporation under section 2 of the act is a different thing from the consent to lay pipes in the streets under section 12 of the act, but a single resolution or ordinance may properly include both consents. In many instances this has been the course pursued, and all the terms and conditions of the exercise of the franchise of opening the streets have been settled by mutual agreement upon the organization of the company. In the present case the consent to the incorporation of the water company under the second section is the only consent of the township authorities which has been given, and the precise question now to be decided was not involved in the Atlantic City Case. The expressions of the learned vice chancellor in that case in reference to the nature of the right of consent given to the township committee by this twelfth section are therefore to be considered as directed to the question really under consideration by him, viz. whether this section gave the township in a consent or contract given to one company the right to contract or provide that this right should be exclusive. It was with reference to this power of the township to grant exclusive rights that the vice chancellor discussed the power of the municipality under the act, and the full bearing upon the question now directly involved does not seem to have been considered. The consequence to municipalities of refusing to give them the benefit of express statutory rights of consent in relation to the exercise of these and other franchises in the public streets, given by many statutes, would, as I pointed out in Inhabitants of Franklin Tp. v. Nutley Water Co., supra, be so serious and far-reaching that I do not feel at liberty, after its approval by the chancellor, to change the rule laid down in the Nutley Water Co. Case, where the right to require consent was the point principally and directly involved and decided.
Defendant's counsel further contends that the consent of the authorities of the township of Saddle River is not necessary, because the pipes are to be laid only in the village of Garfield, which is an unincorporated village, without corporate authorities, and the statute provides that the consent shall be obtained of the corporate authorities, if any there be, of the town through which the same may be laid. That the word "town," in the proviso of the twelfth section, includes townships, is established by the rule laid down in Broome v. Telephone Co., 49 N. J. Law, 624, 9 Atl. 754, and the cases there cited; Inhabitants of Franklin Tp. v. Nutley Water Co., supra. It appears by the certificate of incorporation of the company that it was incorporated by the consent of the township, and was incorperated "for the purpose of constructing, maintaining, and operating waterworks in that part of Saddle River township known as 'Garfield,' and such portion as we [the corporators] may deem advisable, and for the supplying of said portions of said township and its inhabitants with water." "Such portion" I take to mean such portion "of the township" as they may deem advisable, and, if so, the company may claim the right to supply the township with water, and the township committee has the right to require consent. This seems to have been the construction of the certificate acted on by the company, for it applied to the township committee for its consent to incorporation under the second section of the act; and this construction should be maintained, at least, pending the final hearing upon the question.
Costs on the application are to be costs in the cause.