50 Minn. 175 | Minn. | 1892
The defendant is a corporation owning and operating the water works by which the city of Duluth is supplied with water, and authorized by law to charge for water supplied to the inhabitants at specified rates, measured by the quantity supplied.
T.he plaintiffs occupy a building in the city for mercantile purposes, and keep in their service therein some forty or fifty employes. The only water supply for the premises is that afforded by the defendant. There are three water-closets in the building, and faucets elsewhere for drawing water, these all being supplied with water in the usual manner. The water thus supplied is used for the closets, for sprinkling, washing floors and windows, for drinking, and for the ordinary daily use of the persons in the building, but not for culinary purposes. The defendant made a demand on plaintiffs for payment of a specified sum for use of water during a particular period. The plaintiffs refused to pay that sum, claiming that the water meter on the premises, put in by the defendant, did not correctly measure the amount of water passing through it, and that the amount of water for which the charge was made was much in excess of the amount actually used. The defendant was about to shut off the water supply from the building because of such refusal, as it assumed the right to do, when the plaintiffs, in order to prevent the water being shut off, paid the sum charged, under 'protest, and now prosecute this action to recover back the amount of the alleged overcharge.
1. Upon the question of fact as to the water meter having erroneously indicated the amount of water passing through it, the jury found in favor of the plaintiffs. The court, considering that the evidence did not justify the verdict, granted a new trial. Upon this point the case of Hicks v. Stone, 13 Minn. 434, (Gil. 398,) and the numerous decisions in which the rule there announced has been reaffirmed and applied, is conclusive. The evidence was such as to justify the order.
2. The question is presented, and may be expected to again arise upon a second trial, whether the circumstances under which the plaintiffs made the payment were such that the payment may be regarded as having been so far compulsory or necessary that an action will lie to recover it back. We are of the opinion that it is to be
Order affirmed.