If we consider the limited power of municipal corporations we are apt to lose sight of the real question. A municipality when it engages in the water business assumes the same liability as rests upon a private corporation or individual *261engaged in such business. In the practical operation of municipal water plants, perhaps it is safe to say that the water comes from wells, springs or streams owned or controlled by the municipality, and it is pumped or flows from them, and is distributed through the municipal pipes by gravity or pumping to the consumer. The municipality presumably has acquired by purchase or condemnation the adjoining land and the water rights, 'dimming water, like a wild animal, becomes the private property of the person who legally captures or confines it/and when the city brings water from any source owned and controlled by it to its pipes for distribution, the city is the owner of the water passing through such pipes. “ In the character of personal property, water, separated from its source or from the body of which it constituted a part, may be bought and sold like other commodities, as when it is supplied through artificial conduits for domestic use, or irrigation, or when solidified in the form of ice; but the flowing water of a stream is not susceptible of absolute ownership and admits only of a transient, usufructuary property.” (40 Cyc. 552.) It is a common sight upon our streets to see vendors with vehicles going from house to house selling spring water, and the groceries and drug stores in the villages and cities sell waters of various kinds as articles of merchandise. In many places drinking water is frequently supplied by carriers, who retail it from door to door. We do not know in what manner the city of Mechanicville acquires its water. It may pump it from the source into a reservoir, from which it is distributed through its pipes by gravity. It may force it through its pipes by pumps. The particular method is immaterial. It is immaterial whether water is brought to the consumer through pipes or by tank wagons or otherwise. The important fact is that the water as it is supplied and furnished at the tap in the various houses up to the time it is drawn, is the property of the city, and when it leaves the tap is the property of the consumer. We do not know whether the plaintiff paid for the water by the month or by the year, or by meter measurement. In any event, he paid for the water consumed. If not by actual measurement, the charge was based upon the amount of estimated consumption.
We are not called upon to fix a rule applicable to cities *262only, but the rule must- apply to all water distributors. In Milnes v. Mayor of Huddersfield (L. R. 12 Q. B. Div. 443) the municipality was held to warrant the wholesomeness of the water sold by it, Lord Coleridge, Ch. J., saying: “Inasmuch as they are bound to deliver to him a wholesome article, and the whole carriage of the article from the reservoir to his house was through what belonged to, and was under the domination of, the corporation, the corporation would be liable.” (See Danaher v. City of Brooklyn, 51 Hun, 563; 119 N. Y. 241.)
In my judgment the water was disposed of by the defendant as merchandise, and falls within section 96 of the Personal Property Law (as added by Laws of 1911, chap. 571), and as that act is interpreted by Rinaldi v. Mohican Co. (225 N. Y. 70) there is an implied warranty of its quality. I, therefore, favor an affirmance.
Order reversed, with ten dollars costs and disbursements, and demurrer sustained, with costs.