Souther v. City of Gloucester

187 Mass. 552 | Mass. | 1905

Loring, J.

We do not stop to consider whether on the evidence before the Superior Court the plaintiffs were shown to have had any interest in the water rate for cottage B. for the year in question, for we are of opinion that the finding of fact on the merits was not wrong as matter of law. As the bill must be dismissed, even if the preliminary difficulty which we have had is overcome, we prefer to dispose of the case on the ground on which it was tried and disposed of in the court below.

The plaintiffs have undertaken to sweep aside any difference in rates charged them by reason of facts peculiar to the section of the city where the cottage in question is situated, on the ground that the construction of water works is a public use to be paid for by taxation. From this they draw the inference that all rates are to be based on the amount of water used in each instance and on nothing else.

But that is not so. It was well said in Ladd v. Boston, 170 Mass. 382, 335: “ Considerable discretion in determining the methods of fixing rates is necessarily given by the statute to the water commissioner. Money must be obtained from water takers to reimburse the city wholly or in part for the expense of furnishing water. An equitable determination of the pi’ice to be paid for supplying water does not look alone to the quantity used by each water taker. The nature of the use and the benefit obtained from it, the number of persons who want it for such a use, and the effect of a certain method of determining prices upon the revenues to be obtained by the city, and upon the interests of property holders, are all to be considered.” See in this connection Smyth v. Ames, 169 U. S. 466, 546, 547; San Diego Land & Town Co. v. National City, 174 U. S. 739, 757; Cotting v. Kansas City Stock Yards Co. 183 U. S. 79, 95, 96.

The special cost of extending the system to the “ outlying section ” in question, the fact that even if water is wanted there for less than a year as a rule, the interest on the cost of the necessary special construction and on the construction of the works as a whole runs throughout the year, and the fact, if it is a fact, that there are but few persons who take water in this section compared with the cost of extending the water ■ system to it, are all of them matters which can be taken into account in fixing a reasonable rate. It is proper also to take into account the additional fact that “ to enable the defendant to supply water to an increasing number of applicants therefor, between the years 1900 and 1903, principally for summer houses, it was deemed necessary by the commissioners to construct during the year 1902 an additional reservoir or water basin at an expense of about two hundred and fifty thousand dollars.” There may be other matters which have not occurred to us.

It is true that the charge in question is not a charge for this district but for summer houses generally, and there are five hundred summer houses of which the plaintiffs own but ninety-two, that is to say, not quite one fifth. If the other four fifths are so situated that similar peculiar circumstances apply to them, no one could complain of this rate. The plaintiffs in any event cannot complain that some discrimination is made between them and water takers in the heart of the city, and they have gone no further than that in their proof in the case at bar. There is not enough here to enable us to say that, provided some discrimination can be made, the discrimination made is too great. The burden is on the plaintiffs to show that the rate in question is an unreasonable one, and they have not gone far enough to sustain the burden which rests on them.

The plaintiffs’ objection that they are made to pay for a year in advance falls with their objection to paying as much for water in this “ outlying section ” for a part of the year as is paid by others fof water for the whole year in the heart of the city. All rates are payable in advance.

The plaintiffs have relied on Rockland Water Co. v. Adams, 84 Maine, 472, referred to in Turner v. Revere Water Co. 171 Mass. 329, 335. It is enough to say of that decision, so far as the case now before us is concerned, that it did not appear that there were any special circumstances in it. The only question before the court there seems to have been whether, other things being the same, as much could be charged for water for four months as for the whole year.

The plaintiffs’ citation of Norton v. Brookline, 181 Mass. 360, makes it necessary to point out that this is not a case submitted on agreed facts, that is to say, is not a case stated but a case which was tried on a “ statement of agreed facts submitted as evidence.”

No error in law appearing in the finding of fact made by the Superior Court the entry must be

Bill dismissed.