Merrimack River Savings Bank v. City of Lowell, 152 Mass. 556

Merrimack River Savings Bank v. City of Lowell

152 Mass. 556 | Mass. | 1891

Knowlton, J.

The most important question in this case is whether a city or town which is authorized by statute to furnish water to its inhabitants, to be paid for by them, and which has received from a householder payment in advance for water to be furnished, and has arbitrarily cut off his supply, can be held liable in damages in an action at law.

By the St. of 1855, c. 435, and by subsequent statutes, the city of Lowell is authorized to take water from the Merrimack River, to take and hold lands, lay down and maintain aqueducts and pipes from the river into and about the city, and to dp all other acts necessary to furnish the inhabitants of the city with water in their houses and elsewhere, with the right by § 3 to “ regulate the use of said water, and establish, receive, and collect the prices or rents to be paid therefor.” The city has acted under this statute, and is supplying the people with water, in accordance with its provisions. The plaintiff paid the established rates for a supply of water at its house, from April 1, 1887, to April 1, 1888; but on September 3, 1887, the water for the nest preceding year not having been paid for, the city shut off the water from the plaintiff’s premises.

It is argued that, after payment for the water, the plaintiff had only a revocable license to use it, and that the city violated no legal right in depriving the plaintiff of it. It is also suggested that the city is merely performing a public service, and that the rates paid for water by individuals are special tases, and that there is no contract or obligation on the part of the city to furnish water after a payment other than the public duty which it owes to all its inhabitants, and that the plaintiff’s remedy, if any, is by writ of mandamus to compel the performance of this duty.

*559It is true that water supplied by cities and towns to their inhabitants, under our statutes, is, in a broad sense, furnished for public use, and that the constitutional authority to tax the people for this purpose is found in this fact. But while the right rests upon the general benefit to the community from having water for uses in which everybody has an interest, and from the existence of a supply accessible to the whole public, from which every individual may obtain water for his private use, cities and towns may, under statutes authorizing them to furnish water to their inhabitants, make reasonable contracts with individuals to supply them with water for a price to be paid. These contracts should not be inconsistent with the performance by the municipality of its general public duty, nor exceed the reasonable limits which may be reached in the performance of that duty. The general expenses of providing a supply of water, and the general benefits to the municipality from the uses of water which are strictly public, are paid for by general taxation of the inhabitants. There are no special benefits for which special assessments are made growing out of the introduction of the water. Special payments are made by individuals only when they are supplied with water at their request; and then only for what is furnished, and for the time it is furnished. While these may be called special assessments for the use, by individuals, of particular privileges, which are part of a general provision for all the people, it seems to be more consistent with the nature of the transactions to consider them as payments of the price of a commodity, sold under a general authority to provide for the public, and to sell upon, request, in a reasonable way, to the persons who constitute the public. Tindley v. Salem, 137 Mass. 171, 172. That the defendant might, under the St. of 1855, c. 435, § 3, make reasonable express contracts with all the water takers in the city, as a convenient mode of supplying water and collecting pay for it, seems clear. The language which we have quoted from the statute implies that payment is to be made of the price of what is furnished, and that in the absence of an express contract, or of any regulation fixing the mode of collecting payment, there would be an implied contract on the part of one receiving water furnished by the city at his request to pay for it the price established.

*560In Stock v. Boston, 149 Mass. 410, it was assumed, both by the counsel and the court, under a similar statute, that the city of Boston, having complied with the request of an applicant to deliver water by pipes at his greenhouse, and presumably having been paid for it, was under a contract to continue the delivery.

The exceptions do not give the ordinances and regulations in full, but from the statute and such ordinances as appear a majority of the court are of opinion that, upon the application by a property owner to the city for a supply of water at his house for a reasonable time, and the acceptance of his application, and a receipt from him of payment in advance for the water, the city is under an implied contract to continue to furnish it during the term in the manner that the statute contemplates, so far as it can be done by a reasonable effort to perform the duty to the public, and to individuals, which it has assumed.

If no such contract were implied, still we think that the city owes him a duty beyond the public duty which it assumes by proceeding under the statute. For the purposes of this case it may be conceded that the duty of a city to furnish water on equal terms to all its inhabitants is general and public, and that for the breach of it no action at common law will lie in favor of an individual. But the receipt of his money in payment for water which he asks for is impliedly an undertaking to do for him as an individual a particular thing, in which no one else has any interest; and it then becomes the duty of the city to do it, not only in the performance of its public duty to furnish water for the use of all the people in the aggregate, but in the performance of the particular undertaking to furnish him with water for his private use: This undertaking, founded in part on a consideration moving from him, imposes a special obligation solely for his personal benefit, and creates a liability at common law for neglect of the duty. The principle is analogous to that which enables one disturbed by a public nuisance to maintain a private action, in certain cases, for special damages which he suffers as an owner of property. Wesson v. Washburn Iron Co. 18 Allen, 95.

The water furnished for the year commencing April 1, 1886, was not paid-for as required by the ordinance; and, on Jan*561uary 18, 1887, the plaintiff, having a mortgage on the premises, entered to foreclose it for a breach of the condition, and afterwards continued in possession. On June 3,1887, the plaintiff paid the full amount of the water rates for the year commencing April 1, 1887, and on September 3, 1887, the water was shut off for non-payment of the rates assessed for the year commencing April 1, 1886. The water had not been cut off during the year for which the unpaid assessment was made, and at the time it was cut off it was being furnished for a term for which the city had received from the plaintiff payment in advance. The receipt of this money amounted to a contract, or created a duty, to furnish the plaintiff with the water throughout the year, in the manner contemplated by the statute, so far as it could be done by making a reasonable effort to perform the duty which the city had assumed, and precluded the city from after-wards cutting off the water, under its ordinance, on account of the failure of his predecessor in title to pay the rent for the former year.

Whether, if the water had been previously cut off under the ordinance, the plaintiff could have compelled the city to turn it on without payment of the amount due for the previous year, it is unnecessary to decide. jExceptions overruled.