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tion1147 or operation of law,1148 even though that property is water and its future use, the preservation of the health of the people. within the limits of some governmental agent. Water rights are subject to sale and transfer like other property, and contracts, deeds or other instruments transferring them, are subject to the same rules of construction as similar instruments.1149 The right

1147 Inhabitants of Plymouth v. Russell Mills, 89 Mass. (7 Allen) 438; Bailey v. Inhabitants of Woburn, 126 Mass. 416; Watuppa Reservoir Co. v. City of Fall River, 134 Mass. 267; Cowdrey v. Inhabitants of Woburn, 136 Mass. 409; Mills on Monatiquot River v. Inhabitants of Randolph, Holbrook & Braintree, 157 Mass. 345; Tracy v. Erwin, 62 Hun (N. Y.) 619; City of Reading v. Althouse, 93 Pa. 400; Appeal of Haupt, 125 Pa. 211, 3 L. R. A. 536; Leonard v. Village of Rutland, 66 Vt. 105; People v. Van Nort, 15 Abb. Pr. (N. S.; N. Y.) 242.

1148 Wamesit Power Co. v. Allen, 120 Mass. 352; Lund v. City of New Bedford, 121 Mass. 286; Martin v. Gleason, 139 Mass. 183.

1149 Jones v. Springfield Waterworks Co., 65 Mo. App. 388; Ingraham v. Camden & R. Water Co., 82 Me. 335. "It is contended for the complainants," said the court, "that inasmuch as the act allows an appropriation of the waters of the pond and its tributaries above the pond and makes no mention of the brook below the pond, the implication is that the natural flow of the brook is not to be prevented, and that the corporation are to take only such surplus of water as can be diverted without injury to a beneficial use of the flow in the brook as heretofore customarily en joyed. And it is contended that the intention of the act was, not that the corporation would detain the

waters wholly within the limits of the pond, but that they would carry its surplus in a state of high water off into reservoirs to be established in other places. We think it a strained construction of the act to say that the defendants must divert the waters of the pond in such a manner and to such an extent and at such times that there will be no interference with any rights of proprietors on the brook below. The act authorizes the corporation to detain the waters of the pond-not merely a portion-but all of them. No words qualify the amount to be taken. The grant is absolute." Raritan Water Power Co. V. Veghte, 21 N. J. Eq. (6 C. E. Green) 463, reversing 19 N. J. Eq. (4 C. E. Green) 142.

Lord v. Meadville Water Co., 135 Pa. 122, 8 L. R. A. 202. "While a city or borough or a company having the right of eminent domain may take a spring or stream of water to supply a municipality, it can only do so by making compensation to those who are deprived of the use of the water as provided by the constitution. A taking without compensation is a trespass, as much so as the taking of land by a railroad company to construct its road without making compensation or filing a bond with security as provided by law. Where the power to take exists, it must be exercised according to law. If it is not, the corporation so taking becomes a

to acquire such water supply either by purchase or an exercise of the power of eminent domain must be expressly granted to subordinate public or municipal corporations.1150

§ 463. Exercise of the power of eminent domain.

Private property cannot be taken for a public use without the payment of just compensation and the use or the purpose of the taking must be public. The furnishing of a water supply, it has been held, is a public use or purpose sufficient to justify the exercise of the power.1151 The fact that the public corporation intends to engage and does engage in the business of distributing and selling water to private consumers for drinking or other purposes as well as supplying its own necessities does not destroy the public character of such a use.1152 As this power is inherent and exclusive in sovereignty before it can be legally exercised by any subordinate agent, there must have been a grant in clear and unmistakable terms.1153 The extent to which the power can

trespasser and may be proceeded Sweeney, 12 Nev. 251; Olmsted v. against as such. It is a mistake to assume that the purchase of this acre of land gave the company an absolute right to the spring of water. The water did not pass by the deed beyond its reasonable use by the vendee as a riparian owner."

1150 Fay V. Salem & Danvers Aqueduct, 91 Mass. (9 Allen) 577; Watuppa Reservoir Co. v. City of Fall River, 134 Mass. 267; Cowdrey v. Inhabitants of Woburn, 136 Mass. 409; Martin v. Gleason, 139 Mass. 183; Mills on Monatiquot River v. Inhabitants of Randolph, Holbrook & Braintree, 157 Mass. 345; Small v. City of Brockton, 176 Mass. 15; Wadsworth V. Buffalo Hydraulic Ass'n, 15 Barb. (N. Y.) 88.

1151 Great Falls Mfg. Co. v. Attorney General, 124 U. S. 581; Stein v. Burden, 24 Ala. 130; Burden v. Stein, 27 Ala. 104; St. Helena Water Co. v. Forbes, 62 Cal. 182; Reddall v. Bryan, 14 Md. 444; Thorn v. Abb. Corp. Vol. II - 14.

Morris Aqueduct Co., 46 N. J. Law, 495; In re Malone Waterworks Co., 15 N. Y. Supp. 649; City of Syracuse v. Stacey, 86 Hun, 441, 33 N. Y. Supp. 929; Stamford Water Co.. v. Stanley, 39 Hun (N. Y.) 424; In re New Rochelle Water Co., 46 Hun (N. Y.) 525; In re Village of Middletown, 82 N. Y. 196; Lord v. Meadville Water Co., 135 Pa. 122, 8 L. R. A. 202; Irving v. Borough of Media, 194 Pa. 648.

1152 Long Island Water Supply Co. v. City of Brooklyn, 166 U. S. 685; Watson v. Inhabitants of Needham, 161 Mass. 404, 24 L. R. A. 287; Slingerland v. City of Newark, 54 N. J. Law, 62; In re Malone Waterworks Co., 38 N. Y. State Rep. 95; Wisconsin Water Co. v. Winans, 85 Wis. 26, 20 L. R. A. 662.

1153 City of Santa Cruz v. Enright, 95 Cal. 105; Howe v. Norman, 13 R. I. 488.

be exercised when conferred will depend upon the terms of the grant.1154 Within its limits, however, the extent of its exercise is discretionary with the municipal or public authorities. The quality and quantity of water needed or the specific rights condemned must be left necessarily to their determination, as they are the best judges of the local necessities to be supplied.1155 In individual cases the respective rights of the parties must be determined by the language used in the proceedings leading to the appropriation of private rights. The right to exercise the power includes not only the capacity in the public corporation to acquire in this manner, lands, water sheds, riparian and water rights, but all other lands, easements or rights which may be necessary for use in the construction, operation and maintenance or distribution of any part of a water system which includes among other things, pumping and distributing stations, stand pipes, filtering basins and reservoirs or anything essential to their efficiency and safety.1156 The right of exercising the power of eminent domain when granted a public corporation for the purpose of supplying itself and its inhabitants with water is regarded as a continuing power and not exhausted by its single exercise. The purpose of the grant is to secure an abundant supply of wholesome water for public and private use, and this could be easily defeated if the public corporation were not permitted to enlarge or alter the system or any of its parts from time to time.

1154 Pine v. City of New York, 103 Fed. 337. A city in one state cannot condemn lands for the purpose of a water supply in another state. Cain v. City of Wyoming, 104 Ill. App. 538; Dodge v. City of Council Bluffs, 57 Iowa, 560; Ingraham v. Camden & R. Water Co., 82 Me. 335; Johnson v. City of Boston, 130 Mass. 452; Pickman v. Inhabitants of Peabody, 145 Mass. 480; Mills on Monatiquot River V. Braintree Water Supply Co., 149 Mass. 478; City of Helena v. Rogan, 26 Mont. 452.

Woodbury v. Marblehead Water Co., 145 Mass. 509.

1156 Lake Pleasanton Water Co. v. Contra Costa Water Co., 67 Cal. 659; Spring Valley Waterworks V. Drinkhouse, 92 Cal. 528; Bishop v. North Adams Fire Dist., 167 Mass. 364; Burnett v. Com., 417; Inhabitants 169 Mass. of Stoughton v. Paul, 173 Mass. 148; Keller v. Riverton Water Co., 161 Pa. 422; Adams v. San Angelo Waterworks Co. (Tex. Civ. App.) 26 S. W. 1104; Adams v. San Angelo 1155 City of Los Angeles v. Pom- Waterworks Co., 86 Tex. 485. But eroy, 124 Cal. 597. The future reservoirs and standpipes are not in the term "water growth of a city can be considered included and its possible needs provided for mains."

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under proper legislative authority as occasion and needs demand. If, however, the charter or the legislative grant of the power limits a public corporation to a single exercise of the power or a single authority to secure a water supply, its legal rights in this connection are limited to the extent of the grant.

§ 464. Protection of water supply.

The primary purpose of the authority for and legal right of a public corporation to engage in the business of selling and distributing water is the preservation of the health of the people which, it has been repeatedly held and conclusively established, can in no wise be better maintained than by an ample supply of pure and wholesome water for drinking, cooking and other purposes. The absolute purity and the quality of the water, therefore, are essential to the maintenance and existence of the right. This leads logically to the legal proposition that a public corporation engaged in such business can avail itself of all those remedies afforded by law which may be necessary to preserve the pur. ity of the water and to protect it either at the source of supply or in its distribution from pollution, obstruction or diversion.1157 The proceedings usually followed are those necessary for the securing of an injunction and the courts have repeatedly held that the discharge of refuse or other matter which pollutes a water supply is a continuing nuisance for which no adequate remedy

1157 Missouri v. Illinois, 180 U. S. 208; Indianapolis Water Co. V. American Strawboard Co., 53 Fed. 970, affirmed 57 Fed. 1000; Lewis v. Stein, 16 Ala. 214; People v. Borda, 105 Cal. 636; People v. Elk River Mill & Lumber Co., 107 Cal. 221; City of Durango v. Chapman, 2. Colo. 169; Topeka Water Supply Co. v. City of Potwin, 43 Kan. 404; City of Baltimore v. Warren Mfg. Co., 59 Md. 96; Martin v. Gleason, 139 Mass. 183; State v. Wheeler, 44 N. J. Law, 88; State v. Diamond Mills Paper Co., 63 N. J. Eq. 111; Kelley v. City of New York, 6 Misc. 516, 27 N. Y. Supp. 164, affirmed 89

Hun, 246, 35 N. Y. Supp. 1109;
Com. v. Russell, 172 Pa. 506; Peo-
ple v. McCune, 14 Utah, 152, 35 L.
R. A. 396; City of Springville v.
Fullmer, 7 Utah, 450, 27 Pac. 577.
For the purpose of protecting the
supply, a municipal corporation
may be authorized to purchase all
the land along the water body from
which the supply is drawn or even
the entire water shed itself.
People v. Elk River Mill & Lumber
Co., 107 Cal. 221; Inhabitants of
Brookline v. Mackintosh, 133 Mass.
215, and State v. Griffin, 69 N. H.
1, 41 L. R. A. 177.

See

exists at law and, therefore, will entitle the complainant to such relief. Prescriptive rights to foul a source of water supply cannot be acquired.1158

§ 465. Officials authorized to act for the municipality.

In making contracts for a water supply or granting exclusive licenses or franchises to private persons for the accomplishment of the same end, public corporations can only be bound through the action of those officials authorized and competent by law to represent the corporation. Such contracts or licenses and franchises must, therefore, in order to be legal and binding, not only be executed or granted pursuant to some legal authority,1159 but by those officials or official bodies charged with the execution of this duty.1160 Action of officials unapproved by the city coun

stitute a binding contract between the city and the grantee in the ordinance for the construction and operation of the water-works according to its terms."

1158 Inhabitants of Brookline V. Mackintosh, 133 Mass. 215; Martin v. Gleason, 139 Mass. 183; State v. Griffin, 69 N. H. 1, 41 L. R. A. 177; Kelley v. City of New York, 89 Hun, 246, 35 N. Y. Supp. 1109. 1159 See authorities cited under § City of Los Angeles, 88 Fed. 720. 455, supra.

1160 Illinois Trust & Sav. Bank v. Arkansas City, 76 Fed. 271, 34 L. R. A. 518. Number thirteen to the syllabi of this case reads as follows: "The presentation to the city council of a city in open session by a private party who is named as grantee in a defeated ordinance upon its records of a written acceptance of the terms of the ordinance and a bond to construct water-works accordingly, the construction of the works and the location of the hydrants by such grantee under the direction of the city council, the actual acceptance and use of the works by the city when completed and the passage by the city council of a formal resolution that the water-works erected under the ordinance are accepted by the city, con

Los Angeles City Water Co. v.

The court in this case held that "A municipal corporation is bound by the declarations of its officers where such declarations accompany and are explanatory of an act done by the officer in the scope of his authority."

City of Centerville v. Fidelity Trust & Guaranty Co., 118 Fed. 332; welch V. District of Columbia Com'rs, 3 MacArthur (D. C.) 463. In no case can an agent of a public corporation by his action bind a corporation in excess of the powers actually granted it.

Wells v. City of Atlanta, 43 Ga. 67; City of Connersville v. Connersville Hydraulic Co., 86 Ind. 184; Lake Charles Ice, Light & Waterworks Co. v. City of Lake Charles, 106 La. 65. De facto officers equally with de jure ones are competent

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