Kennedy, J.:
It is urged on the part of the appellants that the respondent is a private corporation, created for private gain, and that it takes property for private as distinguished from public use, and that the provisions of the act, chapter 415 of the Laws of 1876, is unconstitutional, because the right of eminent domain is sought to be exercised in talcing private property for private use.
Among the absolute wants of a municipal corporation is that of pure and wholesome water provided for the use of its inhabitants, and water for the protection of property within its limits. This requirement is not one of luxury alone, but is created and exists as a sanitary measure, by the furnishing of which the health as well as the comfort of the citizens is promoted. It is as well a measure of security through which the safety of property is guarded. In seeking this supply it can only be found at those places and in the localities where nature has provided it, and can alone be made subservient to use through artificial means and appliances. If the question of the appropriation of these natural supplies is dependent upon the caprice of the individual who has acquired the prior usufruct use of the waters of a stream or spring, and the power of the legislature to compel its appropriation to the use of the public for the purposes suggested upon due compensation is denied, the instances in the present entire appropriation of water rights b.y individuals would be rare indeed when this want could be met, except by the payment of exorbitant sums and a compliance with an unreasonable exaction. In many instances, and perhaps a majority of cases, municipalities are supplied with water through private enterprise, and it is no less an appropriation of private property for public use because the supply is procured through a corporation incorporated for that purpose than if by the municipality itself. If the latter may invoke the right of eminent domain, so may the former.
The Constitution provides (art. 1, sec. 7) for the manner in which private property may be taken for public use, and how compensation is to be ascertained for the appropriation. The legislature determining for itself that the supply of pure and wholesome water to a village and its inhabitants is an appropriation o-f the same for public use, has, in the exercise of its constitutional right, provided the manner [427]*427private property, in instances of this character, may be taken for a public purpose. (Chap. 415 of the Laws of 1-876, above quoted.) Is this act subject to the objection that it is in violation of the Constitution and a usurpation of power ? We think not. Questions involving the principle have not unfrequently arisen and received judicial construction.
In the Matter of the Bloomfield and Rochester Natural Gas-Light Company v. David H. Richardson et al. (63 Barb., 437), the plaintiff was incorporated under the general gas companies statute of 1848 for the purpose of utilizing the natural gas flowing from a stream or well in the town of Bloomfield, county of Ontario. By a special act of the legislature, passed May 9, 1870, it was authorized to conduct the gas from said well to any city, town or village within thirty miles of that point by mains, to sell and supply gas for lighting the streets, public parks, dwellings and other buildings therein. It was further authorized to take private property for any of its purposes, and in a proceeding to acquire such private property it was directed to follow the provisions of the general railroad act. This statute declares that any real estate so acquired shall be deemed to be acquired for public use. The corporation undertook to conduct gas to the city of Rochester, a distance of about thirty miles from its well. In a proceeding to acquire the right of way for its main through the lands of private owners and to appoint commissioners of appraisal, it was held that the purposes, objects and business of this corporation was a public use within the meaning of the Constitution; and that the statute authorizing it to take private property for the purposes of its said business was constitutional and valid.
It was further held that the power to exercise the right of eminent domain, where such right exists, may be conferred upon a corporation acting in its own interest and for the purpose of private gain; and that within the meaning of the Constitution it is not necessary that the improvements should directly benefit the people of the whole State, but the direct public benefit contemplated, may be confined to a particular community. That when the use to which private property is to be appropriated is a public one, the legislature is the sole judge of the necessity and expediency of the appropriation.
[428]*428Judge Talcott delivering the opinion of the court said: “Most of the principles involved in the discussion of this appeal have been authoritatively settled. In Bloodgood v. The Mohawk and Hudson River R. R. Co. (18 Wend., 9,) it was settled by the court of last resort, that the power to exercise the right of eminent domain, where such right exists may be conferred upon a corporation acting in its own interest and for purposes of private profits. * * * It is equally well settled that in order to constitute a public use within the meaning of the Constitution, it is not necessary that the improvement should directly benefit the people of the whole State, but the direct public benefit contemplated may be confined to a particular community. * * * It is said by the Chancellor in the case of Beckman,
We have examined the cases referred to by the learned counsel for the appellant and find nothing in them in conflict with the views above expressed.
The case of Embury v. Conner (3 N. Y., 501), was where private property was taken, not for public use in any sense of the term. It was attempted to acquire private property under the guise of eminent domain, and by transfer, to vest the title in an individual. (Taylor v. Porter, 4 Hill, 140.) The authorities of the town sought to take private property, and appropriate it for the purpose of a private road. In the Matter of Deansville Cemetery Asso[429]*429ciation (66 N.
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Kennedy, J.:
It is urged on the part of the appellants that the respondent is a private corporation, created for private gain, and that it takes property for private as distinguished from public use, and that the provisions of the act, chapter 415 of the Laws of 1876, is unconstitutional, because the right of eminent domain is sought to be exercised in talcing private property for private use.
Among the absolute wants of a municipal corporation is that of pure and wholesome water provided for the use of its inhabitants, and water for the protection of property within its limits. This requirement is not one of luxury alone, but is created and exists as a sanitary measure, by the furnishing of which the health as well as the comfort of the citizens is promoted. It is as well a measure of security through which the safety of property is guarded. In seeking this supply it can only be found at those places and in the localities where nature has provided it, and can alone be made subservient to use through artificial means and appliances. If the question of the appropriation of these natural supplies is dependent upon the caprice of the individual who has acquired the prior usufruct use of the waters of a stream or spring, and the power of the legislature to compel its appropriation to the use of the public for the purposes suggested upon due compensation is denied, the instances in the present entire appropriation of water rights b.y individuals would be rare indeed when this want could be met, except by the payment of exorbitant sums and a compliance with an unreasonable exaction. In many instances, and perhaps a majority of cases, municipalities are supplied with water through private enterprise, and it is no less an appropriation of private property for public use because the supply is procured through a corporation incorporated for that purpose than if by the municipality itself. If the latter may invoke the right of eminent domain, so may the former.
The Constitution provides (art. 1, sec. 7) for the manner in which private property may be taken for public use, and how compensation is to be ascertained for the appropriation. The legislature determining for itself that the supply of pure and wholesome water to a village and its inhabitants is an appropriation o-f the same for public use, has, in the exercise of its constitutional right, provided the manner [427]*427private property, in instances of this character, may be taken for a public purpose. (Chap. 415 of the Laws of 1-876, above quoted.) Is this act subject to the objection that it is in violation of the Constitution and a usurpation of power ? We think not. Questions involving the principle have not unfrequently arisen and received judicial construction.
In the Matter of the Bloomfield and Rochester Natural Gas-Light Company v. David H. Richardson et al. (63 Barb., 437), the plaintiff was incorporated under the general gas companies statute of 1848 for the purpose of utilizing the natural gas flowing from a stream or well in the town of Bloomfield, county of Ontario. By a special act of the legislature, passed May 9, 1870, it was authorized to conduct the gas from said well to any city, town or village within thirty miles of that point by mains, to sell and supply gas for lighting the streets, public parks, dwellings and other buildings therein. It was further authorized to take private property for any of its purposes, and in a proceeding to acquire such private property it was directed to follow the provisions of the general railroad act. This statute declares that any real estate so acquired shall be deemed to be acquired for public use. The corporation undertook to conduct gas to the city of Rochester, a distance of about thirty miles from its well. In a proceeding to acquire the right of way for its main through the lands of private owners and to appoint commissioners of appraisal, it was held that the purposes, objects and business of this corporation was a public use within the meaning of the Constitution; and that the statute authorizing it to take private property for the purposes of its said business was constitutional and valid.
It was further held that the power to exercise the right of eminent domain, where such right exists, may be conferred upon a corporation acting in its own interest and for the purpose of private gain; and that within the meaning of the Constitution it is not necessary that the improvements should directly benefit the people of the whole State, but the direct public benefit contemplated, may be confined to a particular community. That when the use to which private property is to be appropriated is a public one, the legislature is the sole judge of the necessity and expediency of the appropriation.
[428]*428Judge Talcott delivering the opinion of the court said: “Most of the principles involved in the discussion of this appeal have been authoritatively settled. In Bloodgood v. The Mohawk and Hudson River R. R. Co. (18 Wend., 9,) it was settled by the court of last resort, that the power to exercise the right of eminent domain, where such right exists may be conferred upon a corporation acting in its own interest and for purposes of private profits. * * * It is equally well settled that in order to constitute a public use within the meaning of the Constitution, it is not necessary that the improvement should directly benefit the people of the whole State, but the direct public benefit contemplated may be confined to a particular community. * * * It is said by the Chancellor in the case of Beckman,
We have examined the cases referred to by the learned counsel for the appellant and find nothing in them in conflict with the views above expressed.
The case of Embury v. Conner (3 N. Y., 501), was where private property was taken, not for public use in any sense of the term. It was attempted to acquire private property under the guise of eminent domain, and by transfer, to vest the title in an individual. (Taylor v. Porter, 4 Hill, 140.) The authorities of the town sought to take private property, and appropriate it for the purpose of a private road. In the Matter of Deansville Cemetery Asso[429]*429ciation (66 N. Y., 569) the court held that land taken for the purpose of a burial place for different parties who might purchase lots, and the title to which when purchased rested in the grantee and was the subject of alienation, was no more the taking of private property for public use than it would be if the lands were taken for the burial place of a single person; or in other words, that lands taken for burial purposes were not for public use, anebthat the exercise of eminent domain for the purpose-'.was prohibited by the Constitution. The court say: “ It (the land) is to be vested in trustees, with power to divide into lots, and sell these lots to individual owners. It is difficult to see what interest the public will have in the lands or in their use. No right on the part of the public to buy lots or bury their dead there is secured.” The distinction in principle between this case and the one under consideration is easily appreciated. In this case we think the property proposed to be taken is to be aj>plied for public use, and that the right of eminent domain being so declared by the legislature, is applicable to its appropriation for the purposes intended.
The language of section 3 of chapter 415 of the Laws of 1876 is: “ In all cases where the said company shall be unable to agree with the persons owning or having an interest in any lands, tenements or hereditaments,” the Supreme Court at Special Term may appoint commissioners, etc.
The right of the appellant to use the water of the stream as the propelling power at their mill is an incorporeal hereditament connected with the land, and this easement is property within the meaning of the Constitution, and its appropriation under the power of eminent domain entitled the owner to compensation. (Story v. The N. Y. Elevated R. R. Co., 90 N. Y., 122; prevailing opinion of Danforth, J., pp. 146, 147.)
The property of the appellant which was damaged was located in the county of Delaware, and while it is true that the point of the diversion of 'the water is in the county of Schoharie and out of the Sixth Judicial District, we think the order appointing the commissioners in that district was properly made, because the damage sustained occurred within the district.
The question of damage was properly disposed of by the commissioners.
[430]*430The order confirming the report of the commissioners is therefore affirmed, with ten dollars costs and disbursements.
Hardin, P. J., and Follett, J"., concurred.
Order confirming the report of the commissioners affirmed, with costs.
Beekman v. Saratoga & Schenectady R. R. Co., 3 Paige, 45.