Misc.] Supreme Court, July, 1920. tions. Had the defendants in these cases become plaintiffs against the plaintiff here, then the contention made possible might have been available. Such is not the case here presented. Attention should also be called to the provisions of the contracts themselves. The final provisions of these agreements are: "It is hereby mutually understood and agreed that this agreement shall bind and inure to the benefit of the parties named and also to their respective successors and assigns. "In case of the sale by said party of the second part of all its property and franchises to a corporation which shall assume its liabilities, and it shall thereupon be deemed advisable to dissolve said party of the second part, it is further agreed by said first party that in such case it will consent to the substitution of said purchasing corporation in place of said party of said second part, and will look to it, said purchasing corporation, for the fulfillment of all the obligations it shall assume." The acquisition by merger of the property and rights of a constituent corporation may not be technically a "sale." Nevertheless it would seem to be within the purview of the agreement of the parties, and to present substantially the same situation as though there had been an out and out sale for cash to a purchaser. In any event, these provisions clearly indicate a purpose and intent that whatever person or corporation should acquire the property and rights of a party to the agreement, should become substituted to the rights and obligations of such company. For these reasons we are of the opinion that the position of the defendants that the plaintiff may not Supreme Court, July, 1920. [Vol. 112. enforce the rights given under the contract now under consideration, is not well taken. It is urged by counsel for the defendants that the contracts in question should not be enforced on account of laches on the part of the plaintiff and its predecessor in title. It is true the contracts were made in 1900, and it was not decided until 1914 to proceed with the construction of the tunnel contemplated in the agreements. There is no claim that the project was ever formally abandoned by the plaintiff or its predecessor in title. The mere lapse of time cannot be deemed sufficient to defeat a right or easement clearly granted and conferred. It is manifest from the wording of the instruments in question that it was not contemplated the work of constructing a tunnel should be begun at an early date. The agreements read: "And whereas, it is contemplated by said party of the second part, that it will sometime in the future, construct a tunnel for the purpose of collecting the water, etc." The instruments leave the time for constructing the tunnel purposely indefinite. Evidently it was expected that its construction should not be undertaken until the demand for power should be such as to justify the utilization of the waste waters for that purpose. The evidence is that the public demand for power created no occasion for the tunnel until about the time it was determined to proceed with the work. We clearly are of the opinion that the plaintiff lost none of its rights under these contracts because of any delay in not building at an earlier date. We do not mean to say that delay may not operate in special cases to defeat a right conferred, where by the lapse of time the situation of the parties or properties have so changed as to make it inequitable to enforce such a right. I am unable, however, to discover in the evi Mise.] Supreme Court, July, 1920. dence in this case that any such changes exist, or any altered physical conditions which would make the construction of the tunnel more hazardous or burdensome to the defendants than it was at the time the contracts were made. Indeed it was practically conceded by the engineer called and sworn for the defendants, that if the work of building the tunnel is carefully and properly done, the danger to the defendants' properties would not be at all serious. Certainly no more serious than it was had the tunnel been built shortly after the agreements were made. We think that the defense of laches is without merit. In nearly all cases where the defense of laches is available, it will, we think, be found that some element of estoppel existed which made it inequitable to enforce strict legal rights. In this connection and somewhat akin to the defense of laches is the general argument advanced by the defendants that other conditions have so changed that the plaintiff ought not to prevail in these actions. It is said water power has become more valuable since the making of the contracts, and it would be unconscionable in view of such facts to now enforce the agreement for a tunnel. If the enforcement of the contracts deprived the defendants of any rights, if it lessened the amount of power they are to get, if it interfered with the enjoyment of what it is stipulated they should receive, there might be color to the argument advanced. The building of the tunnel, however, works none of these things. The defendants are deprived of no power belonging to them or agreed to be furnished. The defendants have only the use of the water as it flows for the purpose of generating power, and to a limited quantity. After it has passed their wheels and accomplished its purpose for them it is no longer the property of the defendants, but Supreme Court, July, 1920. [Vol. 112. waste water flowing over and across the plaintiffs' lands to the river below. The contracts simply provide for a means of utilizing these waste waters, by permitting a tunnel to be run through and under the defendants' properties. We are unable to see how the defendants are deprived of anything, or that the advance in the value of power or power rights in any way affects the questions now under consideration. The good fortune of the plaintiff in benefiting by the advance in the value of such rights is no reason why the defendants should not abide by the agreements made. Among other objections raised by the defendants to the relief asked is that if granted and the agreement made is carried out by the construction of the tunnel for the carrying off of the waste water after it has been used on the defendants' wheels, it will operate to deprive the defendants of a right claimed to sink their power shafts to substantially the level of the river, whereby greatly increased power can be developed by the additional fall, and that to deprive defendants of such additional power would be most inequitable and so unjust that a court of equity ought not in good conscience to enforce such provisions in the plaintiffs' favor. The first answer to the defendants' contention is that by the agreements of January 1, 1900, said defendants each agreed that they will not permit the discharge of water on its premises at any other points that were now discharged, unless the same be necessary to the proper conducting of its business, and in no event shall it locate its wheels or discharge any water on or over said bank at a lower level than 461.5 feet above mean low tide at Albany, and that in any event it will before making such new discharge at or above said point 461.5 feet above tide level, give Misc.] Supreme Court, July, 1920. to the party of the second part six months previous notice of its intention so to do, and will afford said party of the second part all proper and reasonable facilities for building proper connections to collect and convey said water from such new point of discharge to such points as second party may desire." In other words, the defendants agreed not to substantially change the location of their wheel pits lower than their present location below the top of the bank, which negatives by positive agreement any pretended right on their parts to sink their wheel pits to the substantial level of the river for the purpose of generating increased power by an additional fall of the water. The con These terms and conditions of the contract between the parties were not deemed unreasonable or oppressive at the time they were made. tracts in question were not hastily or inadvisedly made. It appears they were the subject of prolonged preliminary negotiations between the parties, in which the defendants were represented and advised by able and distinguished legal counsel. We are unable to discover anything in the evidence that made or makes the contracts entered into unfair or inequitable. It certainly was thought fair at the time it was made, and the principle is clearly laid down that in passing upon the question of fairness a contract is to be judged as of the time it was entered into. Prospect Park & Coney Island R. R. Co. v. Coney Island & Brooklyn R. R. Co., 144 N. Y. 152-162; Franklin Telegraph Co. v. Harrison, 145 U. S. 459; Pacific State Savings, L. & B. Co. v. Green, 123 Fed. Repr. 43-46; Marble Co. v. Ripley, 10 Wall. (77 U. S.) 339-356; Lee v. Kirby, 104 Mass. 420, 428. As was said by the court in the case of Prospect Park & Coney Island Railroad Co., at page 162: " The rule established by the above and kindred cases is |