When its charter was granted it was in contemplation that the plaintiff would be called upon to assume its corporate duties and exercise its powers in furnishing water to the city of Syracuse, and that for such purpose it would take and acquire the means of doing so. And in that behalf the company did take, by conveyance, certain property, then in use for that service, and thereafter acquired and applied other property to such use, and for nearly forty years has continued to furnish water for the city and its inhabitants. So far as appears, until the year 1885, no means of supply have been sought for otherwise than through the plaintiff. Then, pursuant to the general act authorizing it, Laws 1880, chap. 85, The Central City Water-Works Company was incorporated, and the objects of its creation, as expressed in its articles of incorporation, were "To supply the city of Syracuse, N. Y., and adjacent villages, with pure and wholesome water for domestic use, for fire protection and other public purposes, and for the purpose of accumulating, storing, selling, furnishing and supplying water in said city and adjacent villages for domestic, manufacturing, municipal and agricultural purposes." Shortly thereafter the Common Council of the city adopted a resolution to the effect that The Central City Water-Works Company, subject to the conditions therein mentioned, were authorized to construct, maintain, own and operate water-works in the city of Syracuse, for the purpose of supplying it with pure and wholesome water, etc., specifying the sources from which the water should be taken, how its quality should be approved, the pressure which it should have at the hydrants, the number, character and generally the distribution of the hydrants to be furnished; and that on the completion of the works, which was to be accomplished within three years after acceptance by it of the proposition, the city agreed to rent from the company, for the period of twenty years, the right to use the water to be supplied by it at five hundred and twenty hydrants, and such additional number as might be ordered, and to pay therefor at the rate of fifty dollars per hydrant annually. The right was reserved to rescind the grant on failure of the company to comply with its terms; also the right after five years to acquire the works and property of the company in the manner there mentioned. This agreement and proposition, and all the terms expressed in the resolution, were formally accepted by the defendant company in April, 1885. The purpose of these actions was to prevent the contemplated agreement between the defendants, and, as made between them, from being carried into effect, upon the ground and for the alleged reason that the plaintiff had the exclusive right or franchise to supply the city and its inhabitants with water. And although the charter of the plaintiff does not, in terms, declare such power to be exclusive or deny to the State the right to create a rival franchise in another, it is contended that the grant to the plaintiff, in its nature, necessarily gave to the plaintiff the exclusive right to supply the city with water, because a franchise to do so can embrace no less than the whole city and the entire supply of water within its boundaries, and, therefore, the proposed grant to the defendant is an invasion of the plaintiff's franchise.
It may be assumed that what is embraced within the terms of the grant to the plaintiff is exclusive in such sense that it cannot be covered by grant to another. That is to say, a grant from the State to a company to construct and operate a bridge, ferry or telegraph, gives to it the exclusive right to operate such ferry, bridge or telegraph, and no right can be given or taken to occupy the same space as the one so constructed or operated under the grant. The property in the company, to that extent and for such purpose exclusively, belongs to it, but a similar franchise may not infringe such right although it may have the effect to impair its operative value. In such case that would be the incidental consequence of the lawful competition and not an invasion of the prior grant. Lehigh Water Company's Appeal, 102 Penn. St 515. By reference to the plaintiff's charter, it will be observed that the provisions directly bearing upon the subject of furnishing water are that, "for the purpose of supplying the said city of Syracuse with pure and wholesome water, said company may purchase, etc., real estate necessary for the purpose." § 8. "And said company shall, when requested, furnish water to the Common Council of the city of Syracuse for extinguishing fires and other purposes." § 16.
After careful consideration of the able and forcible argument of the plaintiff's counsel on this subject, we are unable, in view of the governing rule of construction in such cases, to adopt its reasoning to the effect that the language or nature of the grant is such as to cut off all competition in furnishing water to the city and its inhabitants, and to vest in the plaintiff the exclusive franchise in that respect.
The effect of rival means for the supply of water to the city upon the value of the plaintiff's franchise, is not properly the subject of consideration upon this inquiry, unless it bear upon the question of construction of its charter, for which purpose it does not seem important The plaintiff's structures belong to it conclusively, and it is its exclusive right to take water from its reservoirs, convey it through its mains and pipes and to use its apparatus for the distribution and supply of water to the city and its inhabitants. The franchise of the plaintiff and all its property remain subject to its control and management. By force of the grant to it, the plaintiff took and has the right to maintain its structures, the privilege of supplying all the water the city or its inhabitants may take from it, but not the right to supply them with all the water they may be permitted to use. It may be that the demand upon it for supply will be lessened by the addition of other means which may be provided to bring water into the city.