84 Vt. 121 | Vt. | 1911
The defendants having refused to furnish, the orators with a supply of water for domestic use, these proceedings have been instituted to compel them by mandatory injunction so to do.
The Olcott Water Company is a corporation chartered' by No. 189, Acts of 1892, and is engaged in the business of selling water to the village of Wilder (formerly Olcott Falls) and its= inhabitants for municipal and domestic uses. The other - defendants are its managing officers. The orators live in the-village, and occupy rented tenements situate on the south side of Hawthorne street. The company’s main passes along the-street in front of these premises and is connected therewith-with proper piping, and at all times here material an abundant supply of water was available. The defendant’s refusal is-predicated solely upon a previously adopted rule of the company, in force at the time this controversy arose, which reads as follows: “This company will not collect rents from tenants. Such bills= must be paid by owner of premises.”'
2. But the defendants say that the orators have mistaken their remedy, and that they should have applied for a writ of mandamus, if the defendant’s refusal was wrongful.
It must be admitted that mandamus is a proper and the usual remedy to compel a corporation to perform'a duty imposed upon it by law. But it does not necessarily follow that it is the exclusive remedy. Although it was held in Cox v. Malden & Melrose Gaslight Co., 199 Mass. 324, 85 N. E. 180, 17 L. R. A. (N. S.) 1235, 127 Am. St. Rep. 503, that mandamus furnishes, a complete remedy to one whom a gas company refuses to furnish gas in violation of its duty to the public, and that equity is without jurisdiction to grant mandatory injunctions in such cases when there is no contract and has been no previous deal between the parties, we prefer to regard the adequacy of the remedy by mandamus —which is the test of the question of equity’s jurisdiction — as dependent upon the circumstances of the given
It is said in 6 Pom. Eq. §633, that a mandatory injunction is sometimes awarded to compel a carrier to transport freight
With us an application for a writ of mandamus is made to the Supreme Court. More or less delay is necessarily involved. The application might come at a time when it would be several months before a result could be had. In the meantime all necessity for the writ may have passed. Cases may easily be supposed in which promptness of relief would be all important, and the delay incident to an application for mandamus would render that remedy utterly inadequate and useless. Take the case of a railroad company wrongfully refusing to furnish cars to one engaged in the business of shipping Christmas trees. Take the case of an irrigation company wrongfully refusing to supply a customer with water at a time when the whole crop was endangered. Take the case of an aqueduct company, bound by its charter to supply a municipality with water for fire protection, wrongfully cutting off the supply during an
It does not follow that the orators are not to be required to pay for such water as they might use. Equity does not take the property of one and give it to another. But the rights of the company can all be taken care of in the court below on remand of the case.
Pro forma decree reversed and cause remanded with directions to the court of chancery to render a decree for the orators according to the prayer of the bill. Let the defendants there apply for such orders regarding the payment of water rents, accrued and to accrue as they deem themselves entitled if they be so advised. Let the orators recover costs in this Court, and the costs below be there determined.