Opinion
11-21-1907
WOODBRIDGE TP. v. MIDDLESEX WATER CO. et al.
Ephraim Cutter and Mr. Brown, for complainant. Frank Bergen, for defendants.
Bill for an injunction by the township of Woodbridge, in the county of Middlesex, against the Middlesex Water Company and others. Dismissed.
Ephraim Cutter and Mr. Brown, for complainant. Frank Bergen, for defendants.
EMERY, V. C. The substantial question in this case is whether the township is entitled to require defendant company to remove certain of its pipes from the streets of the township. The defendant company was incorporated in the year 1806, under the act of April 21, 1876, P. L. p. 318 (Gen. St. p. 2199), entitled "An act for the construction, maintenance and operation of waterworks for the purpose of supplying cities, towns, and villages of this state with water," and the supplement thereto. By the supplement of February 14, 1895, P. L. p. 75 (Gen. St. p. 2203), the formation of water companies, under the act, "in any city, township, village, seaside resort, or borough in this state," of population between 500 and 15,000 was authorized. Defendant was incorporated for the purpose of constructing and operating waterworks in the township of Woodbridge, Middlesex county. This act requires (section 2) an organization certificate to be filed with 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," and (section 3) on filing this certificate and consent, the persons signing it, and their successors, become a body corporate, with power to lay pipes for water at such times and in such places as should be necessary and proper to enable it to carry into effect its purposes of incorporation. By section 12 (Gen. St. p. 2202) express authority was given "to the company to lay their pipes beneath such public roads and streets as they may deem necessary for the purposes aforesaid, provided, that the said pipes * * * shall not in anywise 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." On April 14, 1896, a certificate of organization of the company was duly signed and executed, and on April 17, 1896, a petition was presented with the certificate, requesting consent to the incorporation, and also requesting consent and authority "to lay their pipes beneath all public streets, roads, and alleys as said corporation may deem necessary," etc., and "provided the said pipes shall not in anywise unnecessarily obstruct or interfere with the public travel, or damage public or private property." On this petition and presentation of the certificate it was resolved by the township committee that the consent to the formation of the company be granted, and the chairman and secretary were authorized to execute the consent, on behalf of the township, and on April 17, 1896, it was also "resolved that the consent of the township committee is hereby given to the laying of their pipes by the Middlesex Water Company beneath such public roads, streets, avenues, and alleys as they may deem necessary for the purposes of a water supply to the township and the inhabitants thereof," with provisos as to the depth of location of pipes and interference with travel or property. The certificate of organization and consent were filed with the Secretary of State on April 20, 1896. The water company, without any other formal authority or consent, laid its mains and pipes in a number of streets and roads in the township, and on April 20, 1897, entered into a contract with the township for supplying water for public and private use in the township for a term of 10 years, which contract has expired. On May 20, 1906, a portion of the township was incorporated as the borough of Roosevelt, and the water company, on April 22, 1907, began the laying of a main in one or more of the roads of the township, leading to Roosevelt, for the purpose of supplying water for public and private use to the inhabitants of that borough. These mains are laid, without other consent of the township authorities than was given in the resolution of April, 1896, and the township filed this bill to enjoin the further laying of the pipes in the township, without its consent, and to compel theremoval of the pipes already laid to supply the borough of Roosevelt, and the restoration of the public highway. Complainant's claim in the bill is that these pipes for supplying the borough cannot be laid in the highways of the township, without its consent, and that the consent of April, 1896, does not avail the water company, as such consent, for two reasons, first, because this consent was void, it having been given to the corporation April 17, 1896, and the corporation not being formed until April 20, 1890, when the certificate was filed and the persons signing the certificate became a corporation, by the terms of the third section; second, because the consent given by the resolution only applied to work done within a reasonable time after the consent was given. The answer of the defendants, and the affidavits filed on application for a preliminary injunction, showed, in addition, that the pipes in question were not laid exclusively for the supply of water to the borough of Roosevelt, but were necessary in order to meet the increased demand for water supply to the factories and railroads, as well as the inhabitants of the township; that over $90,000 had been expended since December 1, 1906, in purchasing property and material for this increased supply; and that contracts had been entered into requiring the expenditure of at least $135,000 for the same purpose, and that $50,000 more would be required to carry out the plans for the increased supply of water, all of which expenditures and obligations had been incurred, relying on the consent of the township given by the resolution, which up to the time of filing the bill had been regarded both by the township and the company as a sufficient and valid consent. A preliminary injunction was denied, and the water company, pending the hearing, proceeded with the laying of the pipes, and the application now is for a mandatory injunction, requiring the removal. The proofs sustain substantially the above allegations of the answers.
If the complainant makes out at final hearing a case showing that the pipes are laid without authority, for the reasons alleged in the bill, then the court may, by mandatory injunction, require the removal of the pipes laid pending suit; and, under the settled rule authorizing relief by injuuction to public authorities, charged with the protection of public highways, from invasion by public service corporations, under color of statutory authority, this relief would be granted, unless there are circumstances which required the settlement at law of the questions raised. The first objection to the validity of the consent, set up in the bill, is controlled by the decision in Davis v. Town of Harrison, 46 N. J. Law, 79, 84 (Sup. Ct. 1884), that the consent to laying pipes in the streets under section 12 may be given at the same time and in the same resolution or ordinance giving consent to the incorporation. See, also, my own decision in Inhabitants of Saddle River Township v. Garfield Water Co. (N. J. Ch.) 32 Atl. 978 (1895). As to this objection that the consent given was not a consent given to the corporation, because it was given before the corporation was created by the filing of the certificate, I think that the consent to the incorporation of the petitioners being authorized, and given solely for the purpose of filing, should be considered as taking effect only on the filing, and the resolution giving consent that the corporation should lay pipes also take effect only on the creation of the corporation by the filing. The second objection to the consent made by the bill, viz., that it is invalid because given for more than a reasonable time, is manifestly without weight. The township had the right to limit the time, but not having done so, the term of the franchise cannot be now limited by the court. By later legislation indefinite or perpetual franchises of this character have been restrained, but existing contracts have not been impaired. At the hearing two other objections to the consent were raised, which were not made by the bill. One, that the consent to lay the pipes was too general, in extending to all or any streets, and that, in order to be valid, the streets should have been specified. This point was decided adversely to this contention by the Court of Errors and Appeals in Meyers v. Electric Co., 63 N. J. Law, 573, 44 Atl. 713 (1899), where it was held that a general designation of all streets was sufficient and was equivalent to the designation of each and every street by name. Page 577 of 63 N. J. Law, 44 Atl. 713. Another objection made at the hearing was that the act was unconstitutional so far as it or its supplements purport to extend to townships, because the title of the original act of April, 1876, did not include townships, and embraced only "cities, towns, and villages." No cases to support this construction were cited by counsel, and I stated at the hearing that I thought the cases in which the word "towns" has been held to include "townships" cover this objection. But I declined to consider this objection at the hearing, upon the ground that it is one of those objections which, if relied on as a basis for equitable relief, must be specially set out in the bill. And I further declined to allow an amendment at the hearing, for the purpose of setting up this objection. If valid, it would, or might, invalidate the entire franchise of the company to lay or keep its pipes in the streets, and it raises an issue much broader than the present case, and so far reaching in its results that it should not be introduced by amendment into a case which sought only restraint against laying in the streets pipes additional to those already laid.
For the protection of any rights of complainant, dependent on the establishment of the unconstitutionality of the act and on the invalidity of the franchise for the purpose of laying pipes in any of the highways, the complainant should be remitted to the courts oflaw, and a decree of dismissal without prejudice to such action will preserve all public rights.