Opinion
June 26, 1967
In a proceeding predicated upon article 7 of the Transportation Corporations Law by a "pipe line corporation" as defined in that statute, petitioner appeals from so much of a judgment of the Supreme Court, Suffolk County, dated December 12, 1966, as denied its application and dismissed its petition to restrain respondents from interfering with petitioner's making of a survey of their lands in connection with the preparation of a map or plan for a proposed acquisition of a right of way along which an oil pipe line is to be constructed. Judgment affirmed insofar as appealed from, with costs. In our opinion, the totality of the proof adduced convincingly established that the projected pipe line was principally designed for private advantage, with only incidental public benefit. This pattern of fact failed to make the project one predominantly "for public use", a circumstance needed to justify petitioner's claim of right to exercise the power of eminent domain, allegedly vested in it by the provisions of the statute under which it was incorporated (Transportation Corporations Law, §§ 3, 80). Petitioner may not exercise the power of condemnation unless it seeks to take private property for a public use ( Pocantico Water Works Co. v. Bird, 130 N.Y. 249, 258-259). To qualify as a corporation the purposes of which are based upon an assertion of "public use", petitioner had to show factually, and failed to do so, that it sought to conduct a business which in some manner was impressed with a public interest, as if it were a public utility (cf. 73 C.J.S., Public Utilities, § 2). The mere fact that petitioner was incorporated under the provisions of the Transportation Corporations Law did not per se render it a public service corporation with the power of eminent domain, since its status as a "public utility depends not on its [charter] powers, but on its acts" (73 C.J.S., Public Utilities, § 2, supra, p. 994). A projected use is not public in character where, as in the instant case, the public benefit is secondary and only incidental to primary private advantage ( Denihan Enterprises v. O'Dwyer, 302 N.Y. 451, 458; People ex rel. Cayuga Power Corp. v. Public Serv. Comm. 226 N.Y. 527, 532, 533; Matter of New York City Housing Auth. v. Muller, 270 N.Y. 333, 343). Brennan, Rabin, Benjamin and Munder, JJ., concur; Ughetta, Acting P.J., dissents and votes to modify the judgment so as to grant petitioner an injunction restraining respondents from interfering with the making of the survey. The fact that petitioner is a subsidiary of Northville Dock Corporation, a family corporation, is irrelevant. The question here is whether the proposed use will be one "in common" as distinguished from one "for a particular individual" ( Pocantico Water Works Co. v. Bird, 130 N.Y. 249, 259). Cases such as Matter of Niagara Falls Whirlpool Ry. Co. ( 108 N.Y. 375), where a proposed purported railroad was actually to be a sightseeing device, running from Niagara Falls along the edge of the Niagara River; Matter of Split Rock Cable Road Co. ( 128 N.Y. 408), where the proposed additional tramways were to be availed of only by a private corporation; and People ex rel. Cayuga Power Corp. v. Public Serv. Comm. ( 226 N.Y. 527), which involved an attempt to convert a private electrical corporation into a public one, are inapplicable. At Northville, on the property of Northville Dock Corporation, or adjacent to it, are the facilities of a number of major oil companies and the Federal Government, all interested in the distribution of their petroleum there stored. There is nothing in the record upon which to infer that petitioner, through its parent corporation, will preserve the proposed pipeline as a monopoly. On the contrary, petitioner is counting on such general or public use. Of the 28,000,000 barrels capacity, the parent corporation will make use of the pipeline to the extent of five to six millions. Petitioner anticipates use by others, in the first full year, of 50% more than its parent corporation's use. Of course, the terminal of the pipeline must be on its private property. The extent to which others immediately within the locale will use the pipeline will depend upon the resultant saving to them, if any. The Transportation Corporations Law precludes monopoly by severe regulations as to route, rate of compensation for use of pipe lines, equality of terms and uniformity of charges for use of lines, and necessity of public statements as to the conduct of the business (§§ 81, 82, 90, 92).