178 Ga. 400 | Ga. | 1934
Richmond County, through its board of commissioners of roads and revenues, brought a petition against the City Council of Augusta, seeking a decree that it be enjoined from collecting for the use of water by the county at its court-house and jail. After a hearing, the court rendered judgment granting the injunction, and the defendant excepted.
This case is largely predicated on an act of the legislature passed in December, 1820, the title of which recites that it is “to vest the government and regulation of the court-house and jail of Richmond County in the Mayor and City Council of the City of Augusta, and appointing them sole commissioners of the court-house and jail of Richmond County. The preamble of said act is in part as follows:
“In none of the deeds referred to, however, or anywhere else, was there any mention made that it was the intention of the parties to abrogate that portion of the decree which provided that ‘The city council shall furnish all water necessary to run fountains, water-closets, and for all other purposes to the county, free of rent.’ So, in pursuance of the agreement referred to, and the decree of the court, which is attached to the pleadings in this case, it appears that the City Council of Augusta has, without interruption, continuously furnished water to Richmond County at the court-house from June 30, 1890, until the filing of this bill; and even in this proceeding there is no effort to have canceled this portion of the decree; and it appearing to the court that the parties to said agreement of June 26, 1890, and the verdict and decree of this court dated June 30, 1890, have so construed it for the past forty-three years as to mean that the furnishing of water to the county at the court-house was a part of the consideration for said agreement and the said several deeds referred to as a covenant running with the land, the court feels constrained to give the same construction as the parties themselves have given to the several writings, and holds that Richmond County is entitled to the relief prayed for in its petition. The courts have time and again held that neither party can complain of a court giving the same construction to a contract that the parties thereto have placed upon it, especially when there is nothing contrary to public policy in doing so. ' To this end, therefore, it is ordered and decreed by the court, that the City Council of Augusta be and it is hereby restrained and enjoined from cutting
We can not concur in the judgment rendered by the court below. We do not think that the municipality could make a binding contract to furnish water free of charge for an indefinite time in the future, for the purposes mentioned in the contract referred to. The decree taken in the case, largely relied upon by the defendants in error as establishing the agreement referred to, was a mere consent decree in effect ratifying that agreement. The agreement made in reference to furnishing water without charge on the part of the city was ultra vires, and could not be enforced as against subsequent councils of the municipality. We' do not think that the principle applying to covenants running with land is applicable in this case. To lay down any other principle than that announced would be to lay down a rule repugnant to more than one well-considered decision rendered by this court. In Horkan v. Moultrie, 136 Ga. 561 (71 S. E. 785), it was said: “A council of a municipality can not make a binding contract by which it undertakes to obligate the municipality to furnish ‘free of charge/ for an indefinite time in the future, sufficient water for the closets in a given building situated within the corporate limits, in consideration of the owner of the building allowing the municipality to lay its sewer through his land. . . Such a contract, being ultra vires and void, could not be ratified by the continued use, under the contract, of the sewer through the land by the municipality, nor would the benefit thereby received estop it from subsequently setting up the invalidity of the contract.” In the opinion Chief Justice Eish said: “We have found no case that would tend to support a contract made by a city council in behalf of the municipality to furnish water indefinitely to one of its citizens in consideration of his permitting it to lay a sewer through his land. Succeeding councils would necessarily have the power, we think, to change the water rates from time to time as circumstances might require or justify, in order to obtain sufficient revenue to maintain its waterworks system on the one hand and on the other in order to serve all its patrons at reasonable' rates and on equal terms. To allow one council to legally bind the city by a contract of the kind here in question might so tie the hands of its
In Hall v. Calhoun, 140 Ga. 611 (79 S. E. 533), the case of Horlcan v. Moultrie was referred to; but there was no intimation that the ruling in the Horlcan case was not sound, and the Hall case was differentiated from the former case on its facts. In Neal v. Decatur, 142 Ga. 205 (82 S. E. 546), Mr. Justice Atkinson, who rendered the opinion of the court, in ruling upon one of the controlling questions in this case, restated the rule in the Horlcan case and adhered to it. Other cases might be cited recognizing as sound the principle stated. But in the present case there is an additional reason for the conclusion which we have reached. On July 22, 1892, the City Council of Augusta, for a valuable consideration, executed to the County of Richmond a deed to the court-house and also the jail property, in which it conveyed all interests that it had in the property in question here, the recital contained in the deed being, “The intention hereof being to surrender every right reserved under the provisions of said decree and under the said deed and vest in the County of Richmond in fee forever the said lot of land with all improvements and appurtenances thereunto belonging.” In this deed no reference is made to furnishing water; but it is significant that while it does not agree to continue to furnish -the water free — an agreement which was made while it had an interest in the property, this was the final transaction between the county and the municipality upon the subject of ownership of the lot upon which the court-house and jail were built; and the omission to write any stipulation in this last deed as to furnishing water when the city withdrew from the court-house entirely is indicative of its purpose not to furnish water further free. It is true that in this deed the city conveys all rights and appurtenances to the county; but flowing water passing through the pipes and mains into the buildings should not be construed as one of the appurtenances to the building. Moreover, in this deed we find the following clause: “The intention
It follows from what we have said that the judgment granting the injunction must be Reversed.