39 Cal. 473 | Cal. | 1870
delivered the opinion of the Court, Rhodes, C. J., and Sprague, J., concurring :
This action was brought to restrain the defendant from cutting off and depriving the city of the supply of water for general municipal purposes. The plaintiff claims the right to tap any of the pipes of defendant, and take as much
The defendant is the assignee of the San Francisco City •"Water Works, a corporation having a franchise to introduce water into the City of San Francisco, and also of George Ensign and his associates, who had a similar franchise. It is claimed that each of the franchises, thus assigned to the ■defendant, was held subject to the express obligation to furnish the plaintiff water, as claimed in the coinplaint.
■ It is clear to our minds, that the rights of plaintiff, in this respect, must be ascertained entirely from the conditions in •the grant to George Ensign and hie associates. p By the third section of the Act to extend the rights and privileges of the San Francisco City Water Works, passed April 8, 1863, it is provided that any rights, privileges or immunities enjoyed ■by the Spring Valley Works, should be held and enjoyed by the San Francisco City Water Works. If, therefore, the Spring Valley Water Works, as assignees of George Ensign ■and his associates, were not required to furnish the city with water for municipal jrarposes free of charge, it was an immunity to which the San Francisco City Water Works became entitled by that Act.
George Ensign and his associates, and their assigns, were granted the right to lay down pipes in the streets of San Francisco, and to introduce, distribute and sell water, by an Act of the Legislature, passed April 23, 1858. The third section of this Act is as follows :
Section 3. The Chief Engineer of the Fire Department, under the direction of the Board of Supervisors of said City and County of San Francisco, shall have the right to tap any pipes so laid down, and connect hydrants there
. The fouith.section provided a method of ascertaining the .price to be charged for water in all cases, except those mentioned in Section 3. The other parts of the Act throw no light upon this inquiry.
. The first part of Section 3 refers to the use of the water by the city for the extinguishment of fires only. It is.to be taken by the Chief Engineer of the Fire Department for •fires and during the pendency thereof. If the section had stopped here, there could have been no doubt of its meaning. It is perfectly obvious, also, that a modification of the duty or burden imposed upon the company was intended to be made by this remaining portion of the section. The company shall do this up to and until water shall be introduced by some one else, and thereafter the company shall be ■required to furnish their quota or proportion only. If we •read the section omitting the words “for fire and other municipal uses,” we find the section complete in itself, and free from all difficulty. The provision that thereafter they shall furnish their quota or proportion, is a qualification to the requirement that theretofore they should furnish all to the extent of the capacity of their works. It was a division ■of a burden which up to that time they were required to sustain alone, with any other party who might afterwards introduce water into the city. And there can be no doubt that •they will be required to furnish their proportion of water after the burden shall be thus divided, upon the same terms that they are previously required to furnish all—that is, free of charge. The provision is not a restriction upon the right of the city to purchase more than a proportionate share from the company, but a limitation' upon its right to take without ¡compensation.
It Avas competent-for the Legislature to provide that after the event mentioned, the defendant should furnish water for other municipal uses, and that up to that time they should be compelled to furnish water for fires only; and although we can see no good reason why they should have done so, but, on the other hand, judging from the circumstances attending the legislation on the subject, we are convinced that it was intended, and at the time understood by all parties, that the defendant should furnish water for all municipal purposes; yet we cannot override the plain language of the statute, Avhich evidently does not impose that condition upon it. If we can indulge in presumptions as to hoAV this statute was made to read as it does, Ave, should say that this section, as originally drafted, provided only for the use of the water of the defendant for fires, and the words “for other municipal uses” were inserted at the instance of some one Avho was content that they were inserted Avithout
The plaintiff in this case not only sets out the facts which, as he claims, make it the duty of the defendant to furnish water for municipal uses free of charge, but avers that there has been an adjudication upon tie subject, and the defendant is estopped from denying its liability in the matter. That the defendant furnished to the plaintiff water for municipal uses other than for the extinguishment of fires, and for which the plaintiff refused to pay; that thereupon this defendant brought suit against the plaintiff to recover the value of such water so furnished; that the plaintiff appeared and filed an answer in that action, and, among other things, pleaded as a defense that the defendant, by the force and effect of certain ordinances and laws, was bound to furnish such water free of charge, and that such duty and right was clearly put in issue in the pleadings and upon the trial of that action; and thereupon, in that action, it was adjudged and determined that defendant was bound and compelled by such ordinances and laws to furnish the plaintiff, free of charge, not only all water necessary for the extinguishment of fire, but necessary for all other municipal purposes, etc.
It is objected to this averment that having alleged the facts the plaintiff cannot rely upon the estoppel—and the case of Megerle v. Ashe (33 Cal. 84) is relied upon as an authority upon this point. That case only decides that a party may waive the benefit of an estoppel to which he is entitled, and that he does so when he does not rely upon it, but takes issue upon the facts upon which the adjudication is based. The most usual manner in which it has been held that an estoppel is waived, is by omitting to plead it. In this case the plaintiff has certainly not waived the benefit of the- estoppel, nor is it bad pleading to state the facts upon
From the stipulation in the transcript, it appears that the suit Avas brought to obtain a determination of the question whether, the defendant has the right to charge the City and County of San Francisco for water furnished for other purposes than the extinguishment of fires, and the parties have Avaived objections which might be made to the sufficiency of the complaint, for the purpose of presenting this question alone. We are,- therefore, not inclined to consider whether the right of the plaintiff could properly be enforced by the writ of injunction. If the right is found to exist, we understand that all objections to the remedy are waived by the stipulation.
The demurrer should have been overruled; but as the answer denies the fact of the estoppel, the order denying the temporary injunction must be affirmed.
Judgment reversed and cause remanded, with directions to overrule the demurrer.
By Crockett, J., concurring:
I agree with Justice Temple in the opinion that the rights •of the parties in respect to the use of the water are to be
This construction appears to me to be not only reasonable in itself, but fully warranted by the letter and spirit of the Act. So long as the whole burden of supplying all the water needed to extinguish fires, free of charge, was imposed on the defendant, nothing more was to be required of it.
• I concur in so much of the opinion of Mr. Justice Temple as relates to the estoppel, and in the judgment.
"Wallace, J., having been of counsel, did not participate in the decision of this cause.