Millers v. City Council of Augusta

63 Ga. 772 | Ga. | 1879

Bleckley, Justice.

1. From the act of incorporation and other legislation •touching the Augusta canal, together with the record of this case, it may be collected that the canal was constructed for manufacturing as well as other purposes ; that a prime •object was to encourage the building of mills and factories •along its banks for the sake of the water-power it affords ; •that in putting and keeping it before the public, an invitation was extended to capital to come forward and embrace its advantages as a manufacturing site; and that, from time to time, establishments have grown up which are wholly dependent upon it for water to work them and keep their machinery in motion. The canal is the property of the city of Augusta, and the mill and factory establishments, belong severally to the various individuals or companies. There is thus a water-supply owned by the city, and, reciprocally, a water-demand on the part of those who have invested their capital in buildings and machinery contiguous to the canal.

In the case of each establishment, the fall and water-head appropriate to it had to be foreseen when it was erected; and on or before its going into operation, an adjustment of its fixtures and machinery had to take place to the then condition of the canal, so as to fit it for receiving and applying the water. This involved expense, and any material change of the canal thereafter, requiring a new adjustment, would, of course, involve further expense. Indeed, it might be possible to make changes in the canal on a scale which would work ruin to one or more of the establish ments, whilst others of them, perhaps, would be greatly benefited. Again, it is essential that all reasonable expectations of a continuous and regular supply of water, on payment of the established water-rents or rates of compensation, should be met, and none disappointed. Each mill or factory is dependent for profitable working upon drawing from the canal as much water as it needs, and when it needs it. The city keeps a water-market, so to speak, and the patrons of the canal have repaired to that market, and at great expense put themselves in a situation to use the water. In the nature of things the doing of this has brought them into circumstances where they must have it' or sustain heavy loss for the want of it. Between them and the city are special relations which do not hold between the ordinary proprietors of adjacent property. Generally, one man is not obliged to let or sell to another what he owns, or allow him the use of it; but there are certain quasi public occupations in which there is an implied undertaking on the part of those who engage in them to serve, so far as they reasonably can, all comers. The keeper of an inn must receive and entertain guests; the keeper of a toll-bridge or ferry must suffer travelers to cross; a common carrier must allow them seats in his vehicle; and the keeper of a custom-mill must grind for all who bring their grain and offer it for the purpose. So, we think, the owner of a canal constructed in part for manufacturing purposes and afterwards held out as a source of water-supply, must, after expensive machinery has been set up along its banks, on the faith of obtaining the needed supply, furnish each and every establishment a sufficiency of water, if to do so be reasonably in its power, and if the customer is willing to pay and offers to pay at the usual rate. This duty, in the case of the Augusta canal, holds good whether there is any express contract between the parties or not. Doubtless, under the terms of the charter, those patrons who make express contracts, and renew them from time to time, would have the preference, so that if any have to be disappointed for want of means to serve all, the non-contracting patrons would be the sole suferers. It may also be true that to save trouble and expense of frequent settlements, and to remove all risk of failing to collect past dues, weekly, monthly, or quarterly payments in advance might be exacted. Counsel for the city contended in argument, as the court below seems to have ruled at the trial, that in the absence of actual contract to furnish water to the mill of plaintiffs, no obligation to furnish it would exist; and for this position the following language of the charter was cited (the city having under subsequent legislation succeeded to all the power, authority and privileges of the original canal company): “That the said .managers, for the time being, shall have full power, in the name and behalf of the said company, to make all contracts . . . for the use of the water of the same for manufacturing or other purposes, and to impose and collect such proportionate assessments upon the individual stockholders of said company as may be required . . . for the payment of any damage sustained by manufacturers and others from a failure to supply them with water, according to such contracts.” “ That the board of managers for the time being shall have power to make and enforce such rules and regulations in relation to the use of said canal and its waters, for navigation or other purposes, and to impose and collect such tolls, rent or other charges as they may deem equitable or expedient, and which do not interfere with any of the existing contracts or obligations of said company.” We cannot bring our minds to the conclusion that these clauses, or any others in the charter, were intended to enable the company to force its patrons into express contracts, and measure its duty to furnish water solely and exclusively by agreements of that character. Snch a construction would render it optional with the company to furnish for a time and then cease, or to supply one and not another, though having means to supply all; for there is no provision in the charter for obliging the company or the managers to contract with anybody,- or to renew expired contracts. If, therefore, there is no duty independently of express contract, to furnish water, those who need it after preparing to use it might get it or not, according as the company might or might not choose to incur a special voluntary obligation in the particular instance, to supply it. If a statute were passed giving inn-keepers, toll-bridge keepers, ferrymen, common carriers, and millers the power to establish their own rates, and make all contracts in their business, it surely would not follow that they could turn away customers who offered to pay cash at regular rates, merely because.no previous express contract had been entered into. No doubt the canal company, acting in good faith, could lawfully engage all its available water to those of its customers first applying, and first stipulating by express contract to take it and pay for it; just as an inn may be filled by the first arrivals, and nemain full as long as these choose to- stay; but this is quite a different matter from refusing capriciously and without just cause to furnish water that customers need and apply for, and which is pre-engaged to none.

The counsel urged, also, certain provisions of the charter, or of the amendment thereto, supposed to bear on the other element of the case, namely, on the alleged injury to the mill of the plaintiffs consequent upon alterations made or contemplated in the canal. These provisions give power to the company, or to the city, its successor, to enlarge the canal by widening and deepening the same ; to make basins or reservoirs; to construct a branch canal or branch canals leading from one part of the main lipe to another, or to the Savannah river; and to construct acqueducts, tow-paths, dams, waste-weirs, race-weirs, or other structures to improve or make available the canal and its branches for manufacturing purposes. The power here conferred is very broad, but we cannot construe it as authorizing all manner of changes and alterations at the mere will of the corporation, irrespective of their effect upon investments in buildings and machinery once properly erected, and to- which water has for a time been supplied- It is a general rule of law that no one can so use his own property as to damage that of others, and the reason of-the rule extends to corporations with the same force as to natural persons. All the authorized acts just enumerated might be done by a private individual in respect to a ditch or canal wholly on his own, land without any special grant, and still if he did them, and in such a manner as to ba.ck water upon his neighbor’s mill, or otherwise interfere with its efficient working, he would have to answer in damages. There is this much of restraint where only ordinary relations subsist between two- or more parcels of adjacent property ; but we have already signified that between the Augusta canal and the mills and factories situate upon it there is a much more intimate relation than between contiguous estates in general. Relatively to manufacturing enterprises they constitute one system of means. To work out the purposes to which they have been devoted, it is necessary that they be and remain balanced and harmonized ■ in their use; co-operative, not antagonistic or independent, action must be the order of their movement. The canal and all the establishments deriving from it their supply of water are tied together and constitute a kind of special business community. In considering what changes could properly be made in the canal, the inquiry should be whether the particular change in question was needful and could be made consistently with sound principles as applied to the nature of the general enterprise, and to the business relations and circumstances of the corporation toward the various mills and factories as a whole. Perhaps, a useful point of view would be to contemplate the entire outfit, embracing the canal and the aggregate investment- in mills and factories, as one great trust property, with different beneficiaries interested in different parts of it,'and, supposing it to be committed to one and -the same board of trustees, let the question be whether this or that alteration in the canal could be made without a breach of trust toward some one or more of the beneficiaries, or, on the other hand, whether it could be omitted without a failure of duty to others. When various persons embark their capital together, each retaining a several ownership in his own, and a separate control of its management, none are to be in jured without an adequate reason -for it in the fair and judicious prosecution of the general scheme, and with such reason, those who happen to suffer must submit to the sacrifice. The presence or absence of such reason in any given instance is generally a question of fact, and it is so in this case.

2. Not expressing or intimating any opinion, further than. that there was evidence enough to carry the case to the jury, we hold that the order non-suiting the plaintiffs was erroneous.

Judgment reversed.