Thе ease presents the sole question of the meaning and effect of a section (4) in an ordinanсe of .the city, granting to plaintiff the right to lay its main pipes in and through the streets of the city. Section 3 grants thе right. Section 4 is as follows:
“See. 4. The Stillwater Water Company shall lay no less than seven (7) miles of main pipes, so located as to best secure the fire protection of the city, due regard being had for the proper circulation, and for the supply of water for domestic purposes. If at any timе it shall appear that by extending the water pipes or mains an additional revenue to said cоmpany can be secured, either from public hydrants, or by the written agreement of responsible cоnsumers, which shall not be less than at the rate of one hundred and fifty dollars ($150) per year for every three hundrеd (300) feet for such extension, the city council may by resolution require said company to make such extension of pipes, which shall be done without unreasonable delay: provided, however, that if said company shall be required to lay their mains in any ungraded street, whenever said street is graded the city shall pay the cost of relaying such pipes with proper reference to the established grade.”
A рart of the seven miles mentioned in this section was laid along streets, the grades of which had been previously established by the city, but the streets had not been’graded. After the pipes were laid the city re-established the grades on a lower plane than at first established, and graded the streets to the grade as thus re-established.
The plaintiff claims that the proviso applies as wеll to any part of the seven miles that might be laid in ungraded streets as to extensions that might be ordered by the сouncil after the ordinance was passed. The city claims that it applies only to such extensiоns. Grammatically construed, it does not apply to a present requirement, to one made by the оrdinance itself, but applies to future requirements, — “if said company shall be required to lay their mains,” etc. Coming immediately after a part of the section authorizing the council to make such future requirements, requirements further and beyond what are made in and by the ordinance itself, there is no reason to give the proviso any other than its proper grammatical meaning, or for holding that it was the intention to attach a condition to any requirement except such as the power to make which is thus reserved tо the council. The proviso does not apply to the seven miles of mains absolutely required to be laid.
The plaintiff claims also that without the proviso the city would be liable in damages for changing the grades, and cutting the streets down to the grades as changed, if that made it necessary for plaintiff to make a corresponding change in the level of its pipes. This could be only on the proposition thаt the city has in some way fettered or limited its power over the streets, and over the matter of establishing grades and grading streets. Conceding, but not deciding, that under its charter the city could bind or limit the power ovеr those matters intrusted to it, the intention to do so would have to be clearly expressed, or apрear by necessary implication from some act done by it. The plaintiff argues that here is a cоntract between it and the city, and appeals to the principle that one contracting рarty must not interfere with the other in his performance of the contract. There is a contract, it is true, but not such a one as the plaintiff appears to assume. The plaintiff did not agree to lay the piрes for the city. In laying them, it was doing its own work, not that of the city. The contract was merely in the nature of the grant of a franchise or right to plaintiff to lay its pipes in the street; the city imposing on the grant such conditions as it deemed the public
Judgment affirmed.