Citizens' Water Co. v. Bridgeport Hydraulic Co.

none occur to us.

fully have done if the conditions and stipulations of the Green proposition had been embodied in the charter itself. It is not easy to see wherein the force of this suggestion resides. No reasons are given in aid of its pertinency, and Another suggestion is that, although it be true that the sixteenth section reserves the right of amendment of "this act," yet such power of reservation is restricted to that part of the act which precedes the sixteenth section, and therefore cannot be held to touch the seventeenth section. This suggestion may also be passed upon its mere statement. For, while all agree that the defendant's charter is a contract between itself and the state, the law exacts equal unanimity of assent to the proposition that every contract is to be construed as an entirety, so that if this reservation clause had been recited in the first section of the act, it would mean no more and no less than if it had been the last in the order of position. The judicial mind will interpret this article of the contract by its phraseology, and not by its location.

We therefore submit:

1st. That by the chartered contract entered into between the state of Connecticut and the Bridgeport Hydraulic Company in 1857, the state did not therein agree that the Hydraulic Company should have the exclusive right to supply the citizens of Bridgeport with water.

2d. That if any clause in that chartered contract could be construed as conferring such exclusive right, such clause was made subject to alteration, amendment and repeal at the pleasure of the General Assembly, and that to the extent that the General Assembly manifested that pleasure in its grant to the Citizens' Water Company, the charter of that company is a valid charter, and does not impair the obligation of any contract between the state of Connecticut and the Hydraulic Company.

3d. That the state of Connecticut had not, prior to 1886, exhausted its power of eminent domain over the lands and real estate in controversy, but so far retained and then held such powers as that it could and did lawfully delegate

Citizens' Water Co. v. Bridgeport Hydraulic Co.

the same to the Citizens' Water Company, to enable that company to carry out and effectuate the purpose for which it was incorporated.

PARDEE, J. This is a proceeding for the condemnation of rights in land and water by virtue of eminent domain.

The plaintiff is a corporation chartered in 1886 by the legislature of this state, with the right to supply water to the city of Bridgeport, borough of West Stratford, and town of Fairfield, with power to take all property and rights in property necessary therefor by power of eminent domain.

The defendant is a corporation chartered in 1857 by the legislature of this state, for the purpose of supplying water to the city of Bridgeport and its vicinity, with like power. It procured these rights, completed its works, and during many years last past it has supplied and now supplies that city with water.

The plaintiff has instituted these proceedings for the purpose of condemning to its own use certain land and water. rights now owned by the defendant, and proposes to lay pipes in the streets of the city for the distribution and sale of water.

The defendant denies the right of the plaintiff to take any of its land or water rights, or to use the streets of the city for such purpose.

In its answer the defendant says, in effect, that on May 5th, 1853, one Nathaniel Green made a written proposition to the city of Bridgeport concerning the supply of water to it, of which proposition the following sentence was a part: “The city shall give me and such persons as I may associate with me, or any company to be hereafter incorporated or they may assign to, the sole and exclusive right, subject to the legal rights of any person or persons or corporations now existing, of laying down pipes in the streets, highways and avenues of said city, for supplying the city and inhabitants with water, so long as a full and pure supply is furnished." The answer proceeds to say that "thereupon said city,

Citizens' Water Co. v. Bridgeport Hydraulic Co.

by its common council, accepted said proposition, and gave to said Green and his assigns the sole and exclusive right and privilege of laying down pipes for the introduction. and distribution of water in said city, by the following resolution:

"Resolved, That the sole and exclusive right and privilege of laying down pipes in the public streets, avenues and highways of the city of Bridgeport, for the purpose of introducing and distributing water in said city, subject however to the right of any other person, persons or corporations now existing, be and is hereby granted to Nathaniel Green, and such other individuals as he may associate with him for that purpose, or to any company to which he or they may assign the rights and privileges hereby conferred, and which may hereafter be incorporated on application to the legislature of this state. Provided nevertheless, and this resolution is on condition, that said Nathaniel Green, his associates, or said incorporated company, shall supply said city and the inhabitants thereof with a full and ample supply of pure water for all public, mechanical and domestic, and all other ordinary uses and purposes, and in all respects comply with the proposition made by him and hereto annexed and made part of this resolution; and if the said Green, his associates or said corporation shall fail to supply said city and its inhabitants with a full supply of pure water for the purposes aforesaid, or shall fail to fulfill and perform all the stipulations, agreements and specifications in said proposition, then all the rights, privileges and powers hereby conferred shall cease and determine.'

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Shortly thereafter, and in the year 1853, the Bridgeport Water Company was incorporated by the legislature of this state, and reference to the charter of said Water Company, as appears upon page 1356, vol. 4, of the Private Laws of this state, is hereby made. Said Bridgeport Water Company acquired all the rights, powers, privileges and immunities. which said Nathaniel Green or his associates had possessed or acquired, including the right to the sole and exclusive use of the public streets, etc., of the city of Bridgeport, for

Citizens' Water Co. v. Bridgeport Hydraulic Co.

the purpose of laying pipes therein to conduct water into and about said city. Said charter was granted and accepted upon the faith of the proposition of said Nathaniel Green, and said resolution of said common council, herein before referred to.

"In the year 1857 this defendant was incorporated by an act of the legislature of this state, reference to which act, as appears upon page 135, vol. 5, of the Private Laws of this state, is hereby made, and this defendant thereupon acquired and became possessed of, and entered upon the enjoyment. and use of, all the rights, property, powers, privileges and immunities which had belonged or appertained to said Bridgeport Water Company or said Nathaniel Green or his associates. Said charter was granted and accepted upon the faith of the proposition of said Nathaniel Green and said resolution of said common council.

"This defendant, relying upon the powers and privileges granted to it by its said charter, has expended and invested large sums of money, amounting to more than five hundred thousand dollars, in permanent improvements, for the purpose of carrying out the object of its incorporation, and has acquired and now holds the property mentioned in this application, to be used in connection with its other property and rights, for the furtherance of said purpose and object, and particularly as a reservoir and water supply. And therefore, the defendant says, the act of the General Assembly incorporating the plaintiff impairs the obligation of the contract contained in the charter of the defendant, and is in violation of the constitution of the United States and void.

"This defendant denies that the plaintiff, under its act of incorporation, has any right or power to take for its purposes the estate of this defendant, described in said application, or to appropriate to itself the water of said Mill River or its tributaries, now belonging to this defendant, or to take, or impair in any way, any of the franchises that belong to this defendant by its charter."

The question presented is-Could the legislature of 1886

Citizens' Water Co. v. Bridgeport Hydraulic Co.

give the plaintiff the right to lay pipes in the streets of the city of Bridgeport for the distribution and sale of water?

It is the claim of the defendant that, if it should concede that the grant by the common council of the exclusive use of the streets was not of itself effective, because of want of power to make it, nevertheless, it has such exclusive use, for the reason that, in the cited extracts from its charter, the legislature has, both in intention and expression, recognized and confirmed the grant by the city, and made it as effective as if the city had the power to make it, and as if the legislature had made it in the most direct and explicit words. We think the claim of the defendant is well founded.

The sixteenth section of the charter of the Bridgeport Water Company provides that "this act shall be subject to be altered, amended or repealed at the pleasure of the General Assembly." The seventeenth section is as follows:"If said company shall fail to comply with and in all respects to perform the terms, conditions, stipulations and provisions contained in the proposition of said Nathaniel Green relative to supplying said city with water, on file in the office of the city clerk of said city, reference thereto being had, then all the rights, powers and privileges conferred by this act shall cease and determine." The sixteenth and seventeenth sections of the defendant's charter are respectively in the same words.

The eighth section authorizes the defendant to lay pipes in any street in said city or vicinity, "under the direction and by the consent and agreement of the mayor, aldermen and common council of the city and selectmen of the town of Bridgeport."

The seventeenth section is in effect this:-There is a written proposition from Nathaniel Green to the common council of the city of Bridgeport, now on file in the office of the city clerk, in which he offers to supply water if the city will give him the exclusive use of the streets. The city has in form granted such use upon the terms expressed by a vote of the common council; the legislature has knowl