Opinion
December, 1903.
William N. Dykman [ Arthur E. Walradt with him on the brief], for the appellant.
James McKeen [ Albert E. Hadlock and Walter S. Brewster with him on the brief], for the respondents.
The relator is the successor, by consolidation, to the rights and franchises of the Richmond County Gas Light Company, which last-mentioned company and the relator have been furnishing gas for public and private consumption since the year 1856. The Richmond county company was organized in that year, under the provisions of chapter 37 of the Laws of 1848, for the purpose of supplying gas in the towns of Castleton, Northfield and Southfield, and it is alleged on the part of the relator that consents were secured in each of those townships immediately after the organization of the said corporation. It is not questioned that the Richmond county company and its successor have furnished gas in each of those townships, both before and since the various legislative enactments which have resulted in subdividing these towns into villages, etc., and eventually consolidating them under the Greater New York charter. The relator, desiring to lay mains in certain streets not heretofore occupied, applied to the commissioner of water supply, gas and electricity for a permit, and that official denied the same upon the ground, as stated in his return, "that no rights or franchises in the streets, lanes, avenues or highways, or portions thereof, subject of their application has been shown to be in the applicant corporation." Upon the moving papers before the Special Term an issue was raised, and the relator asked for an alternative writ, which was denied, and from the order denying this motion appeal comes to this court.
In the view which we take of this matter it does not seem to be necessary to follow the various acts of the Legislature which have divided these original towns of Castleton, Northfield and Southfield, nor yet to consider the new relations which were brought about by the Greater New York charter, which went into effect on the 1st day of January, 1898 (See Laws of 1897, chap. 378, § 1611). The question is, did the relator allege facts upon this application sufficient, if proved, to show that as the successor of the Richmond county company it has a franchise to do business within the territory embraced within the original towns of Castleton, Northfield and Southfield? If it did, then it had a right to have the permits which were asked for on the 9th day of March, 1903, and the denial of the motion for an alternative writ of mandamus was not justified.
The Richmond county company, as we have seen, was organized under the provisions of chapter 37 of the Laws of 1848, section 18 of which provides as follows: "Any corporation formed under this act shall have full power to manufacture and sell, and to furnish such quantities of gas as may be required in the city, town or village where the same shall be located, for lighting the streets, and public and private buildings, or for other purposes; and such corporation shall have power to lay conductors for conducting gas through the streets, lanes, alleys and squares, in such city, village or town, with the consent of the municipal authorities of said city, village or town and under such reasonable regulations as they may prescribe;" etc. This section was amended by chapter 95 of the Laws of 1871 so as to slightly enlarge the powers of such corporations. There is no doubt that the Legislature might have granted a franchise direct to the corporation, without the consent of the local authorities. ( Ghee v. Northern Union Gas Co., 158 N.Y. 510, 513.) In the statute now before us the grant of power is very broad and liberal, conditioned only upon the consent of the "municipal authorities * * * and under such reasonable regulations as they may prescribe." No method of manifesting this consent is pointed out; no definite body or bodies in the cities, villages or towns are pointed out, and the fair and reasonable inference is that any body which represents the community in a general sense, or in respect to the public rights which are to be granted, is authorized to give this consent. In a city there would be no reason to doubt, in the absence of some definite provision of law to the contrary, that this body would be the common council or other body having like powers ( Ghee v. Northern Union Gas Co., supra), and in a village the board of trustees, while in a township the commissioners of highways, who are charged generally with the care of the streets, roads, etc., would probably represent the "municipal authorities" referred to in the statute. But we do not think it is necessary to decide this question; it is sufficient, for the purposes of this case, to hold that the action of the highway commissioners of these several towns in the year 1856, acquiesced in without objection for nearly half a century, in the absence of a plain provision to the contrary, raises a presumption of the consent of all of the municipal authorities of the several towns, and particularly where the consents so granted were acted upon promptly, and the corporation entered upon the discharge of its obligation to the public in supplying gas in the various townships under the provisions of the law. In Jennings v. Van Schaick ( 108 N.Y. 530, 532), where the plaintiff was injured by falling into an opening in the sidewalk, the court say: "It does not appear that the defendant, who owned the premises, had ever obtained from the municipal authorities any formal license or permission to construct the opening in the sidewalk, but such authority was a reasonable inference from an acquiescence of eighteen years without objection from the city." So in the case now before us, if the highway commissioners were not the municipal officers of the towns who were charged with the responsibility of acting, if they did act, and no other municipal authorities questioned their right to do so, but stood by and saw the plant installed, they would, unless the statute specially provided the method in which their consent was to be evidenced, be deemed to have ratified the consent of the highway commissioners, and the presumption would arise that they had given their consent. ( Schubkegel v. Butler, 76 App. Div. 10, 13; Jorgensen v. Squires, 144 N.Y. 280, 285; Donnelly v. City of Rochester, 166 id. 315, 318.) This result would, it seems to us, under the authorities cited, follow even were it not possible to show any formal action on the part of the highway commissioners, for it is not suggested that the corporation did not construct its plant and distribute its gas in these several towns nearly a half century ago, and it appears that several of the villages which have since been created have taken gas under contracts with the relator and its predecessor. To say at this late day that the respondents may deny to the relator its rights under its franchise, upon any technical question growing out of the manner of the consent given so long ago, is to give precedence to unimportant forms above the substantial requirements of justice.
If we are correct in this view of the case, it would follow that the relator is possessed of a franchise, and upon proof of the facts would have a right, under the ruling made in People ex rel. Woodhaven Gas Co. v. Deehan ( 153 N.Y. 528), to enter into and upon new streets created in the territory for the purpose of discharging its obligations to the public. "When the right to use the streets has been once granted in general terms to a corporation engaged in supplying gas for public and private use," say the court in the last cited case, "such grant necessarily contemplates that new streets are to be opened and old ones extended from time to time, and so the privilege may be exercised in the new streets as well as in the old," and as the municipal authorities, under the act of 1848 were only permitted to make reasonable regulations in granting their consent, it cannot be assumed that they have attempted to limit the powers granted to the corporation by the statute.
The order appealed from should be reversed, with costs, and the application for an alternative writ of mandamus granted.
BARTLETT, HIRSCHBERG, JENKS and HOOKER, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and application for alternative writ of mandamus granted, with costs to abide the event.