62 Ind. App. 263 | Ind. Ct. App. | 1915
This action was brought by appellant, Terre Haute Paper Company, against appellee to enjoin the latter from interrupting the flow of water from its water, works to appellant’s paper mill. The court rendered judgment that appellant was not entitled to the equitable relief sought and that
Briefly, the complaint charges in substance that on March 21, 1871, the city of Terre Haute adopted an ordinance authorizing appellee to operate a system of water-works to supply the city and its inhabitants with water, and for that purpose to lay pipes in all the streets of the city; that said ordinance requires that appellee shall maintain a high pressure of water in said pipes for the purpose of extinguishing fires, and shall furnish the citizens upon the several streets along which pipes may be laid, such quantity of water as they may desire, for which it shall have the right to charge a sum fixed by a schedule of rates of charges to be established by agreement between it and the city, or by arbitration; that pursuant to the provisions of said ordinance, a schedule of rates of charges was established in the manner prescribed, which is still in force; that said schedule fixes the rates of charges for water for certain uses and purposes specified in the schedule, and' also a scale of rates for water when meters are used, and further provides that, in ease of manufacturies of all kinds not specified and for all purposes not
The special findings of fact are very elaborate, and no good purpose can be served by setting them out in full. It is sufficient to say that it is found that appellee refused to continue the service under which water had been supplied for five years and demanded that appellant put in expensive meters and pay a minimum rate of $300 per year in addition to the regular meter rate. Appellant refused to accept these terms, but offered to comply with the terms of the ordinance, which offer was refused by appellee. It is argued that because, since the filing of this suit and pending the appeal, appellee cut off
If, on the other hand, appellee had furnished to appellant its supply of water upon the terms of the special agreement between them, or upon the terms and conditions of the ordinance, then a moot question would be presented which this court could not consider and the principle for which appellee contends would have application, but upon the record as it now stands, as heretofore stated, the questions are not moot. A question is moot when .the judgment of the court could not accomplish the result prayed for. In this cause, the court has ample power by mandate to compel appellee to restore the pipes and furnish the water needed by appellant. Lewis v. Town of North Kingstown, supra; Brauns v. Glesige (1892), 130 Ind. 167, 29 N. E.
Elaborate and very able briefs have been filed by counsel on both sides, and an exhaustive special finding of. facts with conclusions of law stated thereon is in the record. The decision of a very few questions will, in the judgment of this court, however, determine all the questions so ably presented by counsel in their briefs: (1) Was the water company obliged, under the terms of the ordinance to furnish water to appellee in such quantities as it might desire in its paper mill, as shown in the complaint? (2) Was appellee within its rights in demanding that a special contract should be entered into in terms indicated by it before it was obliged to furnish water and pressure demanded by appellant?
The material parts of the ordinance mentioned in the complaint are as follows: “Be it ordained by the common council of the city of Terre Haute; that the Terre Haute Water Works Company, a corporation «organized in the month of March, in the year one thousand eight hundred and seventy-one, under the laws of the State of Indiana, and its successors be and hereby are exclusively authorized and empowered to construct, maintain and operate water works in the city of Terre Haute, to supply said city and its inhabitants with pure and wholesome water; to acquire and hold, as by law authorized, any real estate, easements and water rights necessary to that end and purpose, and to use the streets, alleys, avenues and public grounds of said city of Terre Haute, as it now is or hereafter may be laid out and enlarged, for the purpose of laying
“Section 3. That in the construction of said water works the company shall adopt that system known as the Holly Water Works, or some other approved system, in their discretion; and shall maintain the same in such condition as to be capable of throwing six streams, at once, one hundred feet vertically through one inch nozzles; that the company shall erect for fire purposes at least two double fire plugs to each square along the streets wherein their pipes may be laid. Said fire plugs shall be entirely under the control of the City Council and the Fire Department appointed by it, and moreover said company shall lay pipes along such streets as the Common council may require on reasonable notice as to the time and condition of the ground for work of that character.”
In 4 McQuillan, Municipal Corp., 3573, this language is used: “It was said by Chancellor Pitney in Long Branch Commission v. Tintern Manor Water Co., 70 N. J. Eq. 71, 62 Atl. 474, in speaking for the court of chancery of New Jersey, that: ‘A company which seeks and obtains a franchise to supply a certain territory with water for public and domestic uses is under a moral, and in my judgment a legal, obligation to furnish a supply which shall be equal to all emergencies which may be reasonably anticipated, including unusual droughts and unusual conflagration, and to bear constantly in mind the prospective increase in population and a consequent increased demand for water.’ ”
If the provisions of-the ordinance are sufficiently broad to cover the demands made upon appellee by appellant, then appellant was within its rights in demanding that it be supplied with water under the ordinance. The general provisions of the ordinance seem to contemplate that water shall be supplied to all persons resident of the city of Terre Haute who make demand therefor. Where the rate is not provided for, the charge shall be at meter rates on the estimated quantity used. In the schedule of
Numerous questions are ably presented upon the admission of and refusal to admit evidence, also as to the rulings of the court upon demurrers to the pleadings, and as to the special findings of fact and conclusions of law stated thereon, which, in view of the Conclusion we have reached, need not be discussed. The court erred in stating its conclusions of law. The ends of justice will be subserved by granting a new trial, directing further proceedings not inconsistent with this opinion. Judgment reversed.
Note. — -Reported in 110 N. E. 85. Liability of water companies for nonperformance of contract with municipality, 18 Am. St. 380. Rights and duties of water companies as to payment for meter as a condition to supplying water, 15 Ann. Cas. 378; Ann. Cas. 1915C 1198. See, also, under (1) 3 C. J. 361; 2 Cyc 534; (2) 40 Cyc 774, 791; (3) 22 Cyc 781; (4) 40 Cyc 795, 803.