48 Kan. 12 | Kan. | 1892
The opinion of the court was delivered by
B. H. Mott brought his action against the Cherryvale Water & Manufacturing Company for $700 damages. He alleged in his petition that the defendant is a corporation having the right to construct, maintain and operate a system of water-works in the city of Ottawa, in this state, and has carried on that business under an ordinance enacted by the mayor and council of said city; that on May 2, 1887, he was a citizen and resident of Ottawa and owned personal property, then in his place of business, on block 71, which was, on that day, burnt up without his fault; that it was, by the terms of said ordinance, defendant’s duty to furnish a water pressure of 65 pounds within seven minutes after a fire alarm, 75 pounds within 10 minutes, and thereafter, during the fire, a sufficient supply for fire protection; the alarm to be given by the bell, such pressure to be determined by the register in the engine house; that defendant agreed, by the terms of the ordinance, “that it would pay all damages that might accrue to any citizen of the city by reason of a failure on the part of de
The trial court, in granting the motion for a new trial, ruled that the clauses of the contract and ordinance between the water and manufacturing company and the city of Ottawa did not give the plaintiff a right to recover the damages alleged in his petition, there being no privity of contract between him and the city of Ottawa, and no legal obligation from the city to the plaintiff upon which it could contract for indemnity. The ruling of the trial court is fully sustained by the great weight of the authorities — by all, or nearly all, of the decisions. . The fact that a city levies and collects a tax to be paid to a water company does not create any privity of interest between the water company and a citizen or a resident of the city. In making such contract, the city discharges one of its duties for which it was created, and in raising the required money it only provides the consideration due from it by virtue of the contract. A water company could not proceed directly against a citizen or resident in the first instance for unpaid money due under the contract from the city. “Municipal corporations have and can exercise only such powers as are expressly granted to them by law, and such incidental ones as are necessary to make those powers avail
In several cases, it has been held that a city is not liable for its neglect in cutting water off from a hydrant, but for which the fire might have been extinguished. (Taintor v. Worcester, 123 Mass. 311; New Orleans v. Insurance Co., 25 La. Ann. 390; Wheeler v. Cincinnati, 19 Ohio St. 19; Heller v. Sedalia, 53 Mo. 159; 14 Am. Rep. 444; 25 id. 90.) This action is not based upon a breach of a statutory duty, but upon the failure of the water and manufacturing company to comply with a contract made with the city of Ottawa. It is not charged in the petition that the plaintiff is a tax-payer, or has ever paid any taxes in Ottawa. It is alleged, however, that
There is no claim that this is an action ex delicto. In support of the contention of the plaintiff, the case of Lumber Co. v. Supply Co. (Ky.), 12 S. W. Rep. 554, is referred to. That case differs from this. In that case there was an express contract, set out in the petition, between the lumber company and the water-supply company, by which, in consideration of rent paid for the use of the two hydrants on its own lot, water was agreed to be furnished directly to the lumber company. In referring to the decision in that case, Mr. A. C. Freeman, the law writer, and one of the editors of “The American Decisions,” says, “that the Kentucky court took a different view and reached an opposite conclusion from the other courts by which the question has been considered-and determined.” (18 Am. St. Rep., notes on pp. 380, 381.)
The judgment of the district court will be affirmed.
