1. See MUNICIPAL CORPORATION, "vol 15, p. 1039.*

In Pedrick v. Ripon, 73 Wis. 622, it was held that a court of equity would not interfere to prevent the enforcement of a resolution to contract for waterworks, although wholly unauthorized, where nothing further had been done than the adoption of the resolution.

2. Wayland v. Middlesex County, 4 Gray (Mass.) 500; Grant v. Davenport, 36 Iowa 402; Atty. Gen'l v. Eau Claire, 37 Wis. 400; State v. Babcock, 19 Neb. 230; Reddall v. Bryan, 14 Md. 444; 74 Am. Dec. 550.

In State v. Newark (N. J. 1891), 40 Am. & Eng. Corp. Cas. 33, under an act authorizing a city to purchase waterworks, it was held that the purchase might be made by the city before the completion of the work for which it provides.

The power conferred must be exercised within the limits as prescribed by the act conferring it. In Quincy v. Boston, 148 Mass. 389, the statute authorizing the city of Boston to procure and distribute a supply of water, was held not to confer the right upon the city to convey water to Long Island, a small island situated three miles out in Boston Harbor.

Power of Committee to Introduce New and Expensive Works.-In Nashville v. Hagan, 9 Baxt. (Tenn.) 495, it was held that the power to make a contract for the introduction of a new and expensive improvement in a system of waterworks, being equivalent to the power to levy, collect, and disburse taxes, must be exercised in the same manner and by the same authority, that is, by a corporate act; and, in the absence of a general law or ordinance modifying this rule, a waterworks committee has no power to bind the corporation by a contract of this character.

Contract for Construction of Works Without Ordinance.-In National TubeWorks Co. v. Chamberlain, 5 Dakota 54, it was held that where the city had power to construct a system of waterworks, it was not necessary that its council, before entering into a contract with reference to it, should pass an ordinance authorizing the works to be constructed, or the contract to be made, when the charter did not require it.

Limitation of Time in Which Purchase

May Be Made.-In Ziegler v. Chapin, 126 N. Y. 342, it was held that the power of a city to purchase the franchise and property of a waterworks company was limited to the same time allowed for its acquirement by condemnation, by a statute which authorized the city to purchase it, and at such price as might be agreed upon; and, in case of disagreement, conferred the express power to proceed within two years to acquire the property by condemnation proceedings.

Municipality Operating Waterworks as a Private Company.-In Wolverhampton v. Bilston (1891), 1 Ch. 315, where the undertaking of a waterworks company was transferred by statute to a borough, and the profits of the waterworks were, under a subsequent statute, to be transferred to the borough improvement fund, or, at the option of the corporation, to be applied in the reducing of prices to consumers, it was held that the corporation was a water company supplying water for its own profit.

3. In Rome v. Cabot, 28 Ga. 50, under such a general authority to make contracts, it was held that a city had the right to make contracts for the construction of waterworks.

In Livingston v. Pippin, 31 Ala. 542, it was held that a city council, having power to provide for the ordinary expenses of the town, had power to procure a supply of water in a public

square, and were themselves the judges of the mode best calculated to accomplish that object, on the ground that nothing was more important as a sanitary and police regulation than an abundant supply of water.

In Hardy v. Waltham, 3 Met. (Mass.) 163, it was held that towns having, in their corporate capacity, power to provide for the purchase and maintenance of fire engines for the extinguishment of fires, must have the incidental power to make provision by reservoirs or other means for the supply of water, without which the engines would be useless. But in National Foundry, etc., Works v. Oconto Water Co., 52 Fed. Rep. 33, although the charter of the city conferred powers belonging to municipal corporations at common law and contained a general welfare clause, it was held that the city had no power to confer a franchise for owning and operating waterworks. Jenkins, J., said: "It may be that, by virtue of its duty

to

care for the public health and safety, a city has the power to contract for a supply of water; but it cannot, without express legislative author ity, construct, maintain, or operate waterworks."

1. See MUNICIPAL CORPORATIONS, vol. 15, pp. 1115, 1128.

2. Green v. McClintock, 45 Cal. 11. 3. Grant v. Davenport, 36 Iowa 404. 4. Where it is provided that for the erection of a waterworks company by a city, the proposition must be approved" by a majority of the voters of the city," it is not necessary that the

proposition shall be approved by a majority of all the voters of the city, but only by a majority of the votes cast. Taylor v. McFadden, 84 Iowa 262; Wheaton v. Wiant, 48 IH. 263; People

V.

Warfield, 20 Ill. 160; Sanford v. Prentice, 28 Wis. 358. See also TAXATION, vol. 25, p. 600.

Where, upon the approval of the voters of the city, authority was conferred upon the city to erect waterworks in order to supply the city with water, when provision should be made for raising the sum required for defraying the expenses, it was held that this latter provision was an essential prerequisite, and that the work could not be carried on merely upon the consent of the voters. Hornby v. Beverly, 48 N. J. L. 110.

In Yesler v. Seattle, Wash. 308, where the charter of a city granted the power to erect and maintain waterworks, provided a majority of the voters at a general election of the city should vote upon the same, but where subsequently a general law was passed authorizing the cities to extend their indebtedness and construct, purchase, and maintain waterworks, etc., upon the approval of the majority of the voters at a special election held for that purpose, it was held that although the provision of the charter referred to was not repealed, authority could be exercised upon compliance with the general law, that is, upon the approval of the voters at a special election.

5. Lucia v. Montpelier, 60 Vt. 537

in proceedings by a city to condemn lands for a reservoir site, while the adaptability of lands for such a site must be considered by the jury, the value for such a purpose exclusively cannot be shown and made the sole basis of a recovery, especially when the property possesses other capabilities which are also shown by the evidence.

1. State v. Eau Claire, 40 Wis. 533; Pumpelly v. Green Bay, etc., Canal Co., 13 Wall. (U. S.) 166.

2. Santa Cruz v. Enright, 95 Cal. 105; Burden v. Stein, 27 Ala. 104; 62 Am. Dec. 758; Watuppa Reservoir Co. v. Fall River, 147 Mass. 548; 134 Mass. 267; Tileston v. Brookline, 134 Mass. 438; Tyler v. Hudson, 147 Mass. 609.

In Springville v. Fullmer, 7 Utah 450, a statute authorizing a city to provide the city with water and so on, and providing that the city council should have power to make such ordinances as it might deem necessary, was held to give the city power to acquire all water rights necessary to supply the inhabitants of the city with water.

The rights of riparian owners cannot be interfered with without the pay ment of damages; but it was held that if an owner of a water power stands by, and, not objecting, permits a city, without first assessing and paying him damages, to erect works for a water supply, by drawing water from the stream and thus diminishing his power, he creates an equitable estoppel so that he will not be protected by injunction, but will be left to assert his rights at law. Logansport v. Uhl, 99 Înd. 531; 49 Am. Rep. 109.

In State v. Morris Aqueduct, 46 N. J. L. 495, it was said that the diversion of the waters of a stream or spring should not be allowed, unless clearly necessary for the public good, and the question of necessity should be con

trolled by the court, and there should be satisfactory evidence of the need.

Where an act authorized the trustees of a village to supply the village with water by means of conduits, and, for that purpose, to enter on the lands of other persons, make reservoirs, etc., and provide compensation for the owners of such land, and also for the owner of the land on which the spring or source from which the water was to be conducted was situated, but made no provision for indemnifying the owners of lands through which the stream flowed, though such spring had run from time immemorial, for the injury suffered by diverting the course of the stream from their farms, it was held that an injunction might be granted to prevent any proceeding to divert the stream until provision was made for compensation to those injured thereby. Gardner v. Newburgh, 2 Johns. Ch. (N. Y.) 162; 7 Am. Dec. 526. See also Smith v. Rochester, 92 N. Y. 463; 44 Am. Rep. 393.

What Constitutes Taking.-Under a statute authorizing a town to take the waters of a certain pond for the purpose of supplying the inhabitants thereof with water, the town accepted the act and took land on the shore of the pond, and there dug a water gallery and pumping well and made connection by pipes between the well and pond, but did not use these pipes, all the water coming into the well, either by percolation from the pond or from underground streams; it was held that there had been a taking of the waters within the meaning of the act. Bailey 7. Woburn, 126 Mass. 416. Pollution of Public Supply.-After the taking of the waters of a stream for the purpose of supplying a city with pure water, a presumptive right to pollute the stream cannot be acquired. Martin v. Gleason, 139 Mass. 183.