I do not concur in the decision about to be made. The defendant is a domestic corporation created and organized under the Business Corporations Law of this state (See chapter 611, Laws of 1875, and chapter 422, Laws of 1889, supplemental thereto) in the year 1899.
On the 17th day of July, 1901, it applied to the town *Page 49 board of the town of Collins for permission to lay and maintain pipes and conduits in specified streets and highways of said town for the purpose of conducting gas to prospective users thereof. The board adopted a resolution as follows:
"Resolved, that the consent of the town board of the town of Collins be and the same is hereby given to the Boro Oil and Gas Company, a domestic corporation, to lay and maintain conductors for conducting natural gas for fuel and lights through the following streets and highways of said town viz. * * * upon the following conditions viz.: such conductors shall not be laid under the traveled part of such highways, except to cross the same and shall be so laid as not to interrupt or interfere with public travel upon such streets and highways; and this consent is also given upon the further condition that the company shall replace all earth removed and leave the streets and highways in all respects in as good condition as before the laying of such conductors, and that said company will keep said conductors in repair and save the town harmless from all damage by reason of their location in said streets and highways; and this consent is also given on the further condition, that the company or its assigns shall not charge the inhabitants of said town using gas for fuel or lights or both a sum exceeding twenty-five cents per thousand cubic feet."
About the time of the adoption of said resolution the defendant laid its pipes in said streets and highways and thereafter and ever since gas has been delivered by it to consumers in said town. On the 2d day of January, 1908, it applied to said town board for permission to lay pipes in other streets and highways in said town and permission was granted by resolution upon the same conditions as set forth in the resolution of July 17, 1901. Pipes were thereupon laid by the defendant in said other streets and highways. Gas was furnished to the inhabitants of said town at twenty-five cents per thousand cubic *Page 50 feet until the first day of November, 1911, after which time the defendant has charged thirty cents per thousand cubic feet therefor. This action was brought to recover the excess paid by the plaintiff over and above twenty-five cents per thousand cubic feet for gas consumed by him in November, 1911, and to restrain the defendant from charging the plaintiff more than twenty-five cents per thousand cubic feet for gas thereafter furnished to him by it.
It appears from the record that on May 9, 1908, said town board on the application of the Clear Creek Oil and Gas Company, a domestic corporation, which it is asserted and not denied is organized pursuant to the Transportation Corporations Law (Laws of 1890, chapter 566, now chap. 63 of the Consolidated Laws), and pursuant to section 61 of such Transportation Corporations Law, consented to its laying and maintaining conductors for conducting gas for fuel and lights, through any and all of the streets, lanes, alleys, squares and highways of said town of Collins, excepting a specified part thereof, upon condition that it should not charge the inhabitants of said town using said gas more than thirty cents per thousand cubic feet therefor.
After the resolution of the town board adopted on the application of the Clear Creek Oil and Gas Company the defendant made application to said town board to allow it to charge thirty cents per thousand cubic feet for gas furnished by it, which application was refused. Thereupon the defendant gave notice that on and after November 1, 1911, it would charge thirty cents per thousand cubic feet for gas distributed by it.
Chapter 422 of the Laws of 1889, under which the defendant was incorporated, expressly provides that a corporation so organized "is authorized to dig and trench for, and lay their pipes along or under any of the public roads or highways, or through or under any of the waters within the limits of this state: provided the same *Page 51 shall not be so done as to incommode the public use of said highways, or interrupt the navigation of said waters. Provided,however, that no pipe line for the purpose aforesaid shall beconstructed across, along or upon any public highway, without theconsent of the commissioners of highways of the town in whichsuch highway is located, upon such terms as may be agreed uponwith such commissioners. * * *" (Section 2.)
The town board had no authority to grant to the defendant a franchise. Neither was its assent required or potent for any purpose whatever. The franchise to the defendant came directly from the state, and not from the town. The authority given the defendant by the state (Laws of 1889, chapter 422) to dig, trench for and lay pipes along or under the public roads or highways of the state is conditioned upon the consent of the commissioner of highways (now town superintendent) of the town in which the highways are situated. Although the franchise came from the state the consent of the commissioner of highways was an essential prerequisite to the right of the defendant to occupy the highways. (Matter of Application of Rochester E.R. Co.,123 N.Y. 351.) So far as appears the defendant is a trespasser in the streets and highways of said town.
The consent of the town board was, on its face, the consent of strangers, and a nullity. The statute gives the franchise. The only limitation thereon is the necessity for the assent of the commissioner of highways. The town had no authority in the premises. The persons constituting the town board are not a corporate body and they have no authority to represent the town or the inhabitants thereof, except as such authority is given by statute. No authority is given to the town board to represent the town or its inhabitants in the matter of laying pipes in the town highway.
The town superintendent of highways, subject to the rules and regulations of the commission, has the care and *Page 52 superintendence of the highways and bridges in the town except as otherwise specially provided in relation to incorporated villages, cities and other localities. (Highway Law, sec. 47.) His duty requires that he shall keep them free from obstructions. (Highway Law, sec. 52. See Cook v. Harris, 61 N.Y. 448; VanWyck v. Lent, 33 Hun, 301.) Towns in their corporate capacity have no duties to perform in respect to the care, superintendence or regulation of highways within their limits. (People ex rel.Van Keuren v. Town Auditors, 74 N.Y. 310.) The town superintendent of highways is not the agent of the town but an independent public officer with defined and limited powers. (Lynch v. Town of Rhinebeck, 210 N.Y. 101; Matter ofApplication of Rochester E.R. Co., supra.)
In case of a trespass on a highway it is the duty of the town superintendent and not of the town board to "bring an action in the name of the town, against any person or corporation, to sustain the rights of the public, in and to any town highway in the town, and to enforce the performance of any duty enjoined upon any person or corporation in relation thereto, and to recover any damages sustained or suffered, or expenses incurred for such town, in consequence of any act or omission of any such person or corporation, in violation of any law or contract in relation to such highway." (Highway Law [Cons. Laws, ch. 25], sec. 73.)
The highway commissioners are vested with the general control over the public highways and they have a duty to perform toward the public in connection with their proper maintenance as such. (Matter of Application of Rochester E.R. Co., supra.) The law is not materially changed so far as it affects the question now under consideration by the statutes of 1909. Nothing was obtained by the defendant or given by the town by the resolutions of the town board quoted. The defendant is not estopped, therefore, by any action or failure to act by the town board. *Page 53
Where a corporation obtains some special rights by a resolution of a legislative body of a municipality the conditions connected therewith can be enforced although the franchise of the corporation proceeds from another source. (See Rochester Tel.Co. v. Ross, 125 App. Div. 76; S.C., 195 N.Y. 429.) The defendant derived no benefit whatever from the consent of the town board and there was, therefore, no consideration whatever for the acceptance of the provisions of the resolution in regard to the price of gas in the town of Collins and the acceptance thereof by the defendant is not enforceable.
The provisions of subdivision 1 of section 61 of the Transportation Corporations Law (Consolidated Laws, chapter 63) were not intended as a grant to corporations formed for the purpose of boring, drilling, digging or mining for natural gas and vending the same to the customers thereof under the Business Corporations Law of 1875 as supplemented by chapter 422 of the Laws of 1889 under which the defendant was organized. (Wilson v. Tennent, 61 App. Div. 100; affd., 179 N.Y. 546.)
The defendant is not estopped from asserting its defense. The rule as between landlord and tenant and as between patentee and one contracting with a patentee is not applicable. Enjoyment by permission is the foundation of the rule that a tenant shall not be permitted to dispute the title of his landlord. Two conditions then are essential to the existence of the estoppel; first, possession; secondly, permission; when these conditions are present the estoppel arises. (Bigelow on Estoppel [6th ed.], 550.) All of the authorities called to our attention by the plaintiff in asserting an estoppel as against the defendant are based upon a continued enjoyment of property rights by permission.
It is said in the opinion in Tilyou v. Reynolds (108 N.Y. 558,563) that "The foundation of the estoppel is the fact of the one obtaining possession and enjoying possession by the permission of the other. And so long as *Page 54 one has this enjoyment he is prevented by this rule of law from turning round and saying his landlord has no right or title to keep him in possession." This was said in an action for rent. (See Jacobs v. Sire, 133 App. Div. 617.)
There is nothing in the resolution of the town board to give a basis for the plaintiff's asserted cause of action. The resolutions do not purport to confer a grant to the defendant. They do not assume to put him in possession of the town highways or promise anything on behalf of the town. They are on their face mere quitclaims. Neither the town nor the town board as a body or as individuals had at the time possession of the town highways, nor authority or control over them. The town had no authority, real or apparent, to give to the defendant possession of the highways. Its powers are limited. They are defined by statute, and one dealing with it is charged with notice of its limited powers. (Wells v. Town of Salina, 119 N.Y. 280, 287; Morson v. Town of Gravesend, 89 Hun, 52.) It appears affirmatively that the defendant did not obtain any rights in the highways or become entitled to the possession thereof by reason of the consent of the town board. The commissioner of highways was not a member of the town board or bound by its action. Nothing that the town or the town board did, or now refrains from doing, affects the defendant in its possession of the highways. The defendant is not, therefore, estopped by reason of anything that has been done by the town or the town board from repudiating the conditions named in the resolutions.
The defendant, prior to November 1, 1911, repudiated any claim of right in the highways by virtue of the resolutions of the town board, and the plaintiff, with knowledge of such repudiation, accepted gas from the defendant during the month of November knowing that the defendant intended to charge thirty cents per thousand cubic feet therefor. So far as appears from the record *Page 55 the plaintiff was bound to pay therefor as demanded by the defendant. By the notice any claim of right under the resolutions was repudiated and terminated. The town superintendent of highways had called to his attention the defendant's use of the franchise from the state, and if it was using the franchise without his consent he should have immediately treated it as a trespasser. (Bigelow on Estoppel [6th ed.], 579.)
An estoppel must rest upon some act or admission on the part of the persons sought to be estopped which has been acted upon by the person invoking the estoppel. (Ackerman v. True, 175 N.Y. 353. ) The only act or admission by the defendant which the plaintiff claims to have acted upon consists or grows out of its application to the town board for permission to lay its pipes in the town highways. Any admission growing out of such application is one of law as to the authority of the town board. It was mistaken in assuming that authority was vested in the town board. Such an admission on undisputed facts is not ground for an estoppel in this case. (Brewster v. Striker, 2 N.Y. 19, 41;Matter of Sharp, 56 N.Y. 257; Bussing v. City of MountVernon, 198 N.Y. 196, 202.) It was said by this court inVeeder v. Mudgett (95 N.Y. 295, 310) that "An act absolutely and wholly void, because, under the law, incapable of being performed, cannot be made valid by estoppel. This is true where under the law there is an entire lack of power to do the act which is brought in question."
In People ex rel. United Construction Co. v. Voorhies (114 App. Div. 351; affd., 187 N.Y. 539) it was held in certiorari proceedings to review the determination of a town board rejecting a claim against a town that although the highway commissioner had advertised for bids and contracted with the relator for five bridges with the consent of the town board and one of the bridges had been shipped, the relator could not sustain the appeal against the town because the statute did not give the town *Page 56 board and the commissioner authority to contract for the bridges as the old bridges had not been destroyed or damaged except by natural wear.
In Wright v. Glen Telephone Co. (112 App. Div. 745, 747) an injunction to compel the defendant to furnish the plaintiff telephone services at a fixed rate was denied. It was held that the city did not have power to fix the telephone rates, and not having the power, the telephone company was not estopped from setting up the invalidity of the so-called franchise limiting the rates, and the court say: "If this be sound law the franchise can in no way be a contract binding upon the defendant as to compensation for service for lack of consideration. The defendantcannot be estopped because it has complied so far with termswith which it was not required legally to comply. No harm has been done this plaintiff or the municipality and I can see no element of estoppel in any act done by the defendant under the terms of the so-called franchise."
The defendant has not paid rent to the town nor in any manner other than by its said applications to the town board admitted that the town, as such, has authority or control over the town highways. Such admissions did not in any way prevent the commissioner of highways from performing his duty in the premises. At no time could the assent or refusal of the town board to the defendant's exercising its franchise from the state in any way affect its rights under such franchise or its exercise thereof in said highways.
The defendant would not be estopped in asserting its defense if the action had been brought by the town board in the name of the town. This action, however, is not brought by the town, but by one of the inhabitants thereof. In any event an inhabitant of the town under the circumstances narrated is not in privity with the town board so as to entitle him to maintain an action to enforce the conditions contained in said resolutions. *Page 57
The defendant has the franchise from the state. It is in possession of the highways of the town by consent of the town superintendent, or it is a trespasser therein and should be removed.
The judgment should be reversed, and a new trial granted, with costs to abide the event.
WILLARD BARTLETT, Ch. J., WERNER and SEABURY, JJ., concur with CARDOZO, J.; CHASE, J., reads dissenting opinion, and HOGAN, J., concurs.
Judgment affirmed.