Opinion
December Term, 1896.
Jesse Johnson, for the appellant.
Paul E. De Fere, for the respondent.
We agree with the counsel for the respondent, that the consent of the municipal authorities of the town of Jamaica that the relator might lay its mains through the streets and highways of the town, was more than a grant of a mere license or permit. By the act for the incorporation of gas light companies (Chap. 37, Laws of 1848) corporations organized under it were given the right to manufacture and sell gas, and with the consent of the municipal authorities the power to lay their mains in public streets and highways. Such corporations were given no power of eminent domain, and as the only means of obtaining access to consumers was through the public highways, the franchise obtained by incorporation was practically a barren one until the corporation obtained the consent of the local authorities for laying its mains. By such consent the franchise became complete, and the corporation became vested, not only with the franchise to manufacture gas, but also a franchise to lay its mains for the purpose of delivering its product. ( City of Brooklyn v. Jourdan, 7 Abb. N.C. 25.) The condition of such corporations is similar to that of street railroad companies, which, by their incorporation, are vested with full corporate power to construct and operate street railroads, but cannot acquire a franchise of the street railroad itself unless by consent of the local authorities. If the necessary consents are obtained, then the franchise is complete and becomes property. ( People v. O'Brien, 111 N.Y. 41.) Therefore, the change of municipal government from town to village authorities could not divest the relator of its rights, which could only be forfeited for cause.
But the question remains as to the extent of the franchise acquired by the relator. Did it embrace every highway or street that might at any time thereafter be opened in the territory then under the control of the consenting municipal authorities, or was it confined to existing streets and highways? We think the latter is the true construction of the grant. It is to be premised that grants by the public are to be construed strictly against the grantee. Assuming that the local authorities might give a consent broad enough to include all highways that might be laid out in future, the natural reading of the consent actually given limits its application to existing highways. The local authorities are authorized to impose reasonable regulations as a condition of the consent. Subsequent change in density of population and the character of the locality, both as to business and as to improvements, and also the plan of the construction of any new highways, might render other regulations and conditions appropriate; and subsequent municipal governments should not be foreclosed from imposing such regulations as conditions for a new consent.
We think, therefore, there should be given to the consent the narrow construction.
The order appealed from should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.