174 Ind. 622 | Ind. | 1910
This proceeding was brought by the city of Marion, as relator, to compel appellee, by writ of mandamus, to furnish free of cost to the relator, at its “public library building in said city, hot water heat sufficient properly to heat all the rooms and offices in said building.” An alternative writ was issued, and appellee’s demurrer thereto, for want of facts, was sustained. The relator refused to plead further, and final judgment was rendered in favor of appellee. The assignment of error calls in question the action of the court in sustaining the demurrer to the alternative writ. It appears from the alternative writ that the common council of the city of Marion, on August 28, 1899, adopted an ordinance granting certain persons and their successors and assigns the right
“to conduct a system of hot water heating in said city, and the right to use the streets, alleys and thoroughfares of said city, as it now is or may hereafter be laid*624 out and extended, for the term of thirty years from the passage of said ordinance, for the purpose of laying the pipes, conduits, mains and making connections therewith, for the purpose of furnishing, selling and delivering hot water to heat the dwellings, homes, storerooms, offices and buildings in said city.”
Said rights were granted, subject to certain conditions, among which were the following:
“That said grantees, their successors and assigns, are rto deliver, free of cost, to the city library building heat sufficient for all the rooms and offices in said building, the same to be delivered at the curb or lot line free of all expense to said city. All streets, alleys, etc., used by the grantees or their assigns, shall be put in as good and safe condition as they were before the laying of said mains, pipes, etc., therein.”
The persons named in said ordinance accepted it in whole and in all its details on September 5, 1899.
In 1903, after the adoption and acceptance of said ordinance and pursuant to said ordinance, a heating plant was constructed within said city, and a system of pipes, mains and conduits laid in, under and along the streets, alleys and thoroughfares of said city, and within the corporate limits thereof, and appellee, the successor and assignee of the grantees in said ordinance, began in said year to furnish hot water heat to heat the dwellings, business blocks and buildings in said city, and has maintained and operated said plant under and by virtue of the rights granted in said ordinance. Said library building was erected in the year 1902, and is the only library building ever owned by the relator, and it contains the public library of said city and is used for library purposes.
Judgment reversed, with instructions to overrule the demurrer to the alternative writ and for further proceedings in accordance with this opinion.