dissenting:
With due respect to the opinion of the majority of the court I am unable to see how the conclusion reached in this case can be sustained without ignoring the decisions of this court in Dorrance v. Bristol Boro., 224 Pa. 464; Hastings Water Co. v. Hastings Boro., 216 Pa. 178; Philipsburg Water Co. v. Philipsburg Boro., 203 Pa. 562; Boyertown Water Co. v. Boyertown Boro., 200 Pa. 394; Braddock Borough v. Penn Water Co., 189 Pa. 379, and other cases which recognize the principle that in the absence of an exclusive franchise to a water company, and in the absence or upon the expiration of a contract for the supply of water, a municipality may furnish its own supply.
In the present' case it goes without saying, that the water company is entitled to the full benefit of the terms and conditions of the contract which was made with it by the borough of Brushton, when it was permitted to enter upon the streets and lay its pipes. But the question for consideration is as to what that contract really was. It is to be found in the terms of the ordinance, and turning thereto we find that it provided for two things; one was the grant to the water company of the use of the streets of the borough, “to lay pipes for the purpose of supplying water to the borough and its inhabitants,” and in addition thereto, the ordinance authorized “ a contract with it for the supply of hydrants for fire and other public uses.” As stated in the majority opinion, “The grant to the water company of the right to use the streets for the purposes aforesaid was without limit as to time; but the ordinance contained a stipulation, however, that the contract between the borough and the company for water for municipal purposes, should be limited to ten years.” At any time, then, after ten years, the borough was at liberty to contract with any other water company for a supply of water. There never was a time during the corporate existence of the plaintiff company when the door was not open to any other company to enter the borough and supply the inhabitants. There was never any exclusive right in the plaintiff company. Since the passage of the act of June 2, 1887, it has been the policy of the law of Pennsylvania to forbid monopoly in the supply of water. Had *650it not been for the fact that in White v. Meadville, 177 Pa. 643, the water company had a charter granted prior to 1887, which gave it an exclusive right, the decision in that case would have been in flat violation of the statute. The decision did not in fact turn upon the question of contract at all. It was decided solely upon equitable principles as applied to that case. No question of contract between the city of Meadville and the water company was involved. The water company had a right which no other company could invade, and the court held that although the city was not bound to purchase the waterworks, it would not be equitable to allow it to destroy their value by duplicating them at the expense of the taxpayers.
It is but fair to call attention to the fact that Justice Dean who wrote the opinion in White v. Meadville, also sat in the case of Philipsburg Water Co. v. Borough of Philipsburg, 203 Pa. 562, and was cognizant of the distinction drawn between the two cases, and if he had felt that in the latter case the doctrine of the Meadville case was being unduly narrowed, he would presumably have expressed his dissent.
In the present case, as there is a clear legal right upon the part of as many other companies as may choose to do so, to enter the field and supply water, it is evident that no equitable right of the plaintiff company would be interfered with, by permitting the city to do what any other water company may freely do. In the absence of an exclusive right in the plaintiff, why should the right of the city alone be denied? I can see neither reason nor justice in any such discrimination. In the majority opinion it is admitted that even when the city has contracted with one company, it may give to another company the right to enter upon the streets and lay pipes; but as the opinion goes on to say, “it may not, whether there be one or several companies supplying the inhabitants with water, build waterworks of its own to compete with the companies which entered with its consent.” And why not? Has the city not the right to do directly that which it has the unquestioned right to do indirectly? If it may grant permission to some other company organized for.that purpose, to enter and lay *651pipes, and supply the inhabitants of that section of the city, with pure, filtered water, why may it not furnish its own supply for the same purpose? It is difficult to conceive of any good reason to the contrary.
If we look to the contract into which the borough entered in this case, it will appear that the only thing to which it bound itself, was the purchase of a supply for hydrants and fire purposes, during a term of ten years, which period expired in 1901. That contract had nothing to do with the supply of water to the people for domestic use. The other feature of the ordinance was the grant by the borough to the water company, of permission to occupy the streets with its pipes. This right is not being questioned or interfered with. The city, as successor to the borough, merely claims the right to lay its own pipes also, as any other water company may do. The precise evil which the decision of the majority makes possible now, was anticipated and supposedly guarded against by the decision against the contention of this same water company, in Braddock Boro. v. Penn Water Co., 189 Pa. 379, in which the opinion of the court below was adopted by this court, and in which it was said (p. 383): “The importance of holding them strictly within the powers and privileges granted to them, is emphasized not only by the fact that they are now attempting to exclude a large borough, with a waterworks, from laying pipes in one of its own wards; but also, by the fact that if the city of Pittsburg adds any more territory on the east, it will have no right to extend its water system to cover it, if the franchise contended for is exclusive.”
The reasoning of this court in Olyphant Sewage Drainage Co. v. Olyphant Borough, 211 Pa. 526, applies most aptly to the circumstances of this case. There the plaintiff company had been granted permission to construct and maintain in the streets a system of sewage. It contended that the grant of such permission tied the hands of the borough, and prevented it thereafter from constructing its own system. The contention was overruled, and the claim of an exclusive right denied, and in the opinion in that case, this court said, the act “under which plaintiff company was incorporated did not confer *652any special rights, privileges or powers upon it, except the right to enter upon and occupy public highways with the consent of local authorities. The naked grant of permission to use streets and lay pipes confers no exclusive right. It cannot be doubted under our well established rules of law that whatever right the plaintiff had under the ordinance of 1894 was subject to the future use of the highways by said borough whenever it chose to construct a sewage system of its own.” This language fits accurately the case now before us, for the principle involved is precisely the same. Aside from its contract for the supply of water for ten years for fire protection, the plaintiff company here had nothing but the naked right to lay pipes in the streets, and this conveyed no exclusive right, and gave it nothing which ought to be held to prevent the borough from establishing a system of its own. No substantial distinction can be drawn between the rights granted under the law to a water company, and those which may be exercised by a private company organized to construct and maintain a system of sewers in the streets of a municipality. The reasoning which, in the public interest, prohibits a monopoly in the one case, should deny it in the other. The claim set up in that case was most properly denied by this court; but a similar claim here advanced by the plaintiff company, meets with favor in the majority opinion. It seems to me here, that, as was suggested in the Olyphant case, the effect of denying the right of a municipality to construct its own system in-a field open to all other companies, is an unwarranted impairment of the powers of municipalities, and an unjustifiable abridgement of the rights and privileges of the citizens thereof.
Brown, J., concurs in this dissent.