THE AMERICAN AND ENGLISH ENCYCLOPEDIA OF LAW. WATERWORKS AND WATER COMPANIES. (See also EMINENT DOMAIN, vol. 6, p. 526; GAS COMPANIES, vol. 8, p. 1268; MUNICIPAL CORPORATIONS, vol. 15, pp. 1115, 1128; TAXATION, vol. 25, p. 5; WATERCOURSES, vol. 28, p. 943.) 1. I. MUNICIPAL OWNERSHIP AND CONTROL OF WATERWORKS Power to Erect and Operate.-Unless the power is conferred by legislative authority, a municipal corporation has no right to incur expenditures for public waterworks, for, as a creature of purely statutory existence, it can exercise no powers or rights other than 29 C. of L.-1 1 those conferred by statute, either expressly or by fair implication.1 Waterworks for the supplying of cities and towns with water, are undoubtedly for public and municipal purposes, and the legislature may confer authority upon municipalities to erect and operate such works, or to purchase works already established, and to that end incur expenditures, levy taxes, issue bonds, and exercise the right of eminent domain. This power has been held to be implied from the grant to a municipal corporation of the power to make all contracts which may be deemed necessary for the general welfare.3 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 be fore 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 proa supply of water in a public cure Under authority to provide for a supply of water, a city may contract with a company for that purpose.1 But an act authorizing a municipal corporation to enter into a contract with a party to supply the city, does not authorize the municipal authorities to erect works to be owned by the city.2 A general statute conferring the power upon "all cities and incorporated towns" to construct waterworks, has been held to apply to cities acting under special charters, as well as to those under the general incorporation law.3 The proposition, whether or not the city shall erect a system of waterworks, may be left to the voters of the community.4 And where the legislature delegates to a municipal corporation the power "without limitation" to supply itself with water, the power rests in the discretion of the voters in respect to the amount to be expended therefor, if exercised in good faith and for proper municipal purposes.5 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 Ill. 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 accordance with the fundamental principle that an agent employed to sell cannot himself be the purchaser, and vice versa, it has been held that an ordinance of a city council providing for the purchase of the plant of a water company, and the issuance of bonds in payment thereof, was illegal and void where it appeared that several members of the council were stockholders in the water company.1 Authority given to a city to erect waterworks impliedly confers the power to levy a tax for that purpose. A city ordinance providing for the establishment of a system of waterworks, and appropriating a specified sum of money for sinking an artesian well, is not invalid on the ground that the system adopted may prove a failure, or that the cost cannot be ascertained in advance.3 2. Taking of Private Property—a. IN GENERAL.-The supplying of water to a large number of the inhabitants in a city or town is as we have seen, clearly a public purpose, to accomplish which the legislature may confer upon a city, or a company organized for that purpose, the right to condemn private property.4 To 1. State v. Consumers Water Co. (N. J. 1894), 45 Am. & Eng. Corp. Cas. 655. See also People v. Overyssel Tp. Board, 11 Mich. 222; Smith v. Albany, 61 N. Y. 444. 2. Taylor v. McFadden, 84 Iowa 262. See also Quincy v. Jackson, 113 U. S. 332; Ralls County Ct. v. U. S., 105 U. S. 733; Parkerburg v. Brown, 106 U.S. 489. As was said in U. S. v. New Orleans, 98 U. S. 381, the general principle is that "when authority to borrow money or incur an obligation, in order to execute a public work, is conferred upon a municipal corporation, the power to levy a tax for its payment, or the discharge of the obligation, accompanies it, and this, too, without any special mention that such power is granted. This arises from the fact that such corporations seldom possess-so seldom, indeed, as to be exceptional-any means to discharge their pecuniary obligation except by taxation." 3. Taylor v. McFadden, 84 Iowa 262. 4. Lumbard v. Stearns, 4 Cush. (Mass.) 60; Wayland v. Middlesex County, 4 Gray (Mass.) 500; Tyler v. Hudson, 147 Mass. 609; Reddall v. Bryan, 14 Md. 444; 74 Am. Dec. 550; Kane u. Baltimore, 15 Md. 240; Graff v. Baltimore, 10 Md. 544; Stein v. Burden, 24 Ala. 130; 60 Am. Dec. 453; Thorn v. Sweeney, 12 Nev. 251; TideWater Co. v. Coster, 18 N. J. L. 518; 90 Am. Dec. 634; David v. Portland Water Committee, 14 Oregon 98; Atty. Gen'l v. Eau Claire, 37 Wis. 425; State v. Newark, 54 N. J. L. 62. The fact that the water supply is not for the benefit of the state, does not prevent it being a public use. It is sufficient if it benefit a large portion of the inhabitants of a particular community. In Wayland v. Middlesex, 4 Gray (Mass.) 500, Thomas, J., said: "The petitioners seek to take the case out of the rule, contending that in this case the appropriation of property cannot be held to be for public uses; its benefits being confined to one city alone and not shared by the whole public. . . . But we think this is too narrow a view of the objects and purposes of the act. Many public works would perhaps be found to be peculiarly beneficial to the city or town in which they are located, though the benefits are not restricted and confined to such town or city. In the present case, the benefits are shared by a large portion of the public directly, and indirectly by the whole commonwealth. It would be difficult, we think, to find any class of cases in which the right of eminent domain is more justly or wisely exercised than in provisions to supply our crowded towns and cities with pure water, provisions equally necessary to the health and safety of the people." Measure of Damages.-In Alloway v. Nashville, 88 Tenn. 510; 29 Am. & Eng. Corp. Cas. 372, it was held that, subserve such a purpose, it has been held that the legislature may authorize the erection of a dam in a navigable river, provided such dam does not materially obstruct navigation therein.1 b. WATER AND WATER RIGHTS.-Not only may a city, when authorized to exercise the power of eminent domain, condemn lands, but in order to furnish its supply of water, it may take water from public streams or ponds, provided compensation is made to the riparian owners.2 The fact that the municipality authorized to take the water of a stream is a riparian owner, will 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 payment 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 Ind. 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 v. 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. |