East Hartford Fire District v. Glastonbury Power Co. , 92 Conn. 217 ( 1917 )

The respondent claims that in 1905 it was specially authorized by its charter (14 Special Laws, p. 1090) to appropriate the waters of Roaring Brook and its tributaries; that this special grant modifiedpro tanto the prior general grant of authority to the petitioner to take water from any brook in the town of Glastonbury; that by acquiring the property and making the preparations alleged in its answer it had already appropriated these waters to a public use before this petition was brought; and that the petitioner cannot now take them for an inconsistent public use in the absence of any authority expressly or by clear implication empowering it to do so.

The respondent's corporate purposes, as expressed in its charter, are many and varied. It is given broad and general authority to operate all sorts of mines and quarries, and to carry on any kind of manufacture. It has authority to generate electricity and to distribute it within specified territory, and for that purpose to locate its poles and wires on highways and public grounds within such limits.

It has power to build and maintain dams, etc., on Roaring Brook and its tributaries for the purpose of providing the necessary ponds and reservoirs to improve, develop and utilize the power of said stream and its tributaries; and in that connection it is provided that "said company is hereby granted the powers conferred upon individuals by Chapter 65 of the General Statutes relating to flowage petitions, and said powers shall be exercised by said company subject to the provisions and restrictions of said chapter." It also has the power to build and operate a railway (otherwise than by steam) over a prescribed route, and by § 14 of the charter it is given power to take lands necessary for the construction of its railway as provided in § 3687 of the General Statutes.

It thus appears that the respondent's powers of eminent domain are different in degree and graduated according as one or another of its varied corporate purposes is to be exercised. As a railroad company it has the same power to take land necessary for the construction of its railway that other railroad companies have under the General Statutes. As an electric light and power company it has power to locate its wires and poles on highways and public grounds, but no power to condemn private property for that purpose. As a mill owner and developer of water-power on Roaring Brook, it has the same rights of flowage, subject to the same restrictions, that individuals have under the Flowage Act, but no other powers of eminent domain. Since the Flowage Act does not authorize the condemnation of land except for raceways, the authority to build dams on Roaring Brook is necessarily to be exercised on lands acquired by the consent of the grantors or lessors; and that being so, the charter gives the respondent no greater right or larger authority to develop the water-powers of Roaring Brook than those which any individual would possess who happened to own or lease the same property; namely, the right to build dams on its own land, and, under the Flowage Act, to flow the land of others so far as necessary, on paying actual damages plus fifty per cent. But this latter right is expressly required to be exercised "subject to the . . . restrictions of said chapter," among which is the proviso, contained in § 984 of the General Statutes that no such dam shall be erected to the injury of any existing mill or millsite not abandoned. Reading this restriction into the charter, it is manifest that the General Assembly did not grant, or intend to grant, to the respondent any special privileges in the matter of developing the water-powers of Roaring Brook, but only to give it all the rights, and no more than the rights, of other individual riparian owners under existing general law.

This disposes of the respondent's claim that its charter contains a subsequent specific grant of authority to appropriate the waters of Roaring Brook, which operated as a modification of the petitioner's general authority to take water from any brook in Glastonbury.

The respondent's other claim, that it had already appropriated the waters of Roaring Brook to a public use before the filing of the petition and hence that the petitioner cannot take them for another public use unless thereto authorized expressly or by clear implication, is capable of two possible applications; one resting on the proposition that the development and maintenance of water-power is in itself a public use, and the other resting on the claim that the respondent's answer sufficiently alleges that it has appropriated these waters to the specific purposes of operating a railway and of distributing electricity among the public.

As to the proposition that the development and maintenance of water-power is in itself a public use within the meaning of the rule relied on by the respondent, it should be noted that it has long been the custom of the General Assembly to grant to public and private corporations, chartered for the purposes of municipal water supply, general authority to take water from any source within specified limits. InWater Commissioners v. Johnson, 86 Conn. 151, 164,84 A. 727, the validity of these general grants was affirmed, with the remark that if they were not valid "much, if not most, of our legislation empowering municipalities to provide water-supplies would fail." It is also notorious that practically all of our streams available for municipal water supply were long ago utilized for water-power, either directly or through their connecting waters. It must therefore be supposed that the General Assembly, in making these general grants, intended them to be operative upon streams already used for water-power. Such has been the common understanding of their effect, and, it must be held, that, by necessary implication, these grants of general power to take water from any brook within specified territory authorize the taking of water from existing water-powers, at least when such water-powers are not already employed in some other public use at the time of the proposed taking.

The respondent's claim that property already appropriated to one public use cannot afterward be taken for an inconsistent public use unless such taking is authorized either expressly or by clear implication, is undisputed. Evergreen Cemetery Asso. v. New Haven,43 Conn. 234; New Haven Water Co. v. Wallingford,72 Conn. 293, 44 A. 235; Starr Burying Ground Asso. v. North Lane Cemetery Asso., 77 Conn. 83, 58 A. 467;Water Commissioners v. Johnson, 86 Conn. 151,84 A. 727.

The rule applies to property which is about to be lawfully appropriated to a public use although the appropriation is not yet complete. New Haven WaterCo. v. Wallingford, supra.

It is apparent, however, that the exercise of the sovereign right of eminent domain, when validly delegated for a proper purpose, ought not to be obstructed on the ground that the owner of the property in question intends to appropriate it to a public use at some future time, unless such intent is unmistakably evidenced by conduct which practically guarantees its speedy consummation. Accordingly it was held, in the case last cited, that the mere acquisition by the New Haven Water Company of land and water rights along a stream with a view to appropriating its waters for increasing the water supply of New Haven, was not a prior appropriation as against a municipality having only general authority to take water from any brook in that locality; because the conduct of the Water Company did not evidence an intent to take the water under its charter at present or in the near future, but only to take it at some indefinite time in the future whenever it should desire and determine to do so.

In the present case the respondent was chartered in 1905 as the successor in interest to a corporation of the same name already organized under the Corporation Act, and nevertheless it appears from the answer that it has not yet commenced to construct its railway, or to generate electricity, or to develop the water-power of Roaring Brook. It alleges that it is, and for a long time has been, making its preparations to develop these water-powers, but it does not allege that these preparations include any construction work either on the brook or in the territory where it proposes to distribute electricity, or in the construction of its railway; or that the preparations it is now making are any better calculated to produce quick results than those which it has "for a long time" been making. Furthermore, it is not alleged when construction work will be begun, not to say finished, or so far finished that some part of the waters of Roaring Brook will in fact be used for the purposes alleged.

In the language of New Haven Water Co. v. Wallingford,72 Conn. 293 (44 A. 235) at page 304, these allegations "indicate at most a general and indefinite intent to utilize the property in some way, at some indefinite time, and to appropriate the water, under its charter, not at present or in the near future, but whenever it should desire and determine to do so later on."

Moreover, in that case, the Water Company had no right to use the water for any other purpose than that of supplying the city of New Haven with water. So that the only uncertainty was as to the time when it would be so used. But in this case there is also another and more important uncertainty as to the use which the respondent may finally elect to make of its water-power when developed. True, it now intends to use it for the purposes alleged; but when this allegation of intent is referred to the respondent's charter, as it must be in order to ascertain its legal effect, it appears that the respondent is fully authorized to form a different corporate intent, and to use its water-power, whether translated into electric energy or not, for carrying on a mining, quarrying, or manufacturing business of a purely private nature, in case it should hereafter seem more profitable to do so.

In view of these uncertainties as to time and use, it cannot be said that the waters of Roaring Brook and its tributaries had been lawfully appropriated to a public use when this petition was filed.

This conclusion makes it unnecessary to discuss the question whether the generation of electricity for a public use by means of water-power is such an appropriation of the water to a public use that a water company generally authorized to take water from any source in that locality may not, upon paying just compensation, take some part of the water for a municipal water supply.

There is no error.

In this opinion the other judges concurred.