33 Ind. App. 193 | Ind. Ct. App. | 1904
Lead Opinion
This cause having been commenced in the Porter Circuit Court, the venue was changed to the court below. It has been transferred to this court by the Supreme Court.
In 1885, the common council of the city of Valparaiso, appellee, the plaintiff herein, adopted an ordinance author
Section eleven of the ordinance was as follows: “At any time after the expiration of fifteen years from the completion of said water-works the city shall have the right to purchase the same by giving the owners thereof one year’s notice in writing; and in case of such purchase, the city shall pay a reasonable value for the same, which shall be ascertained by three disinterested hydraulic engineers; one to he chosen by the city, one by the owners of the waterworks, and the third selected by the two thus chosen. The appraisement fixed by such engineers, or, in the event they do not all agree, the appraisement fixed by any two of them, shall be conclusive and binding upon the parties as the purchase price of said water-works: Provided, that nothing shall be paid for the unexpired franchise of said” persons named in the ordinance, “their successors and assigns,”
It was found that the present “physical value” of the. water-works system was $59,996, including water rights, and that the “going value,” by reason of the connections with private consumers and its being a live and going concern, was $26,110, and that the “reasonable value” of the system at the commencement of the suit and at the time of the finding, including its physical value and its going value, w'as $86,106; and it was found by the court below that upon the payment or tender of that sum on or before October 1, 1903, the appellee would be entitled to a conveyance and the possession and control of the water-works, and that a commissioner should be appointed to make the transfer; and it was so adjudged.
The controlling question of the cause, as presented by counsel, relates to the notice provided for by section eleven of the ordinance; it being contended, on behalf of the water company, that the contract provides that such notice shall be given after the end of fifteen years from the completion of the water-works, and that therefore the notice given by the appellee, somewhat more than a year before the expiration of the period of fifteen years, was of no avail. We are
Nor can we regard the contract as one to be construed as to this particular portion more strongly against the city than the water company, by reason of its being a contract prepared with care and at leisure by the former, and accepted by the latter without like opportunity to consider its provisions, as in case of a policy of insurance. The city granting the franchise reserved the right to terminate the enjoyment thereof by the grantee, and to acquire, for its reasonable value, the property used in such enjoyment, the manner of exercising this right on the part of the city being stipulated in the contract, whose language should be construed in the sense in which it may be supposed to have been understood by the parties at the time of the making of the contract, doubt as to their intention being resolved in favor of the city rather than of the water company.
The grant of the franchise by the municipal corporation is to be strictly construed and to be taken most strongly against the grantee, and nothing is to be taken by implication against the municipal corporation representing the
There are in the section in question a leading or predominating idea and a subordinate idea. The leading idea is the purpose to accomplish something, and the subordinate idea relates to the manner of accomplishing it. The prominent and controlling purpose is to provide a minimum period during which the water company could not be deprived of its enjoyment of the franchise, and at the end of which the city might terminate it and acquire the tangible property and water rights of the company at their reasonable valuer That minimum period was fifteen years, not sixteen years. The language which embodies the leading idea is: “At any time after the expiration of fifteen years from the completion of said water-works, the city shall have the right to purchase the same.” In providing the method of accomplishing such a result, it is stipulated that this right to purchase at any time after the expiration of fifteen years shall be exercised by the city by giving the owners of the property one year’s notice in writing. Undoubtedly, there must be a compliance with the requirement such as will fulfill the expressed meaning of the parties.
In the second section of the ordinance it was provided that the privileges and franchises granted “shall continue
If it be agreed that such strictness of performance shall he required as is requirable of a party seeking to purchase, who, being bound to perform a condition precedent, was not bound to purchase and could not be required to do so, while the other party was bound to sell, yet, in ascertaining what was to be performed, the meaning of the contract is to be determined from all the language used and the consideration of the nature of the' transaction in which the language was employéd, no greater advantage being given in the construction of the language to those dealing deliberately for their own private gain than to the municipal corporation represented in the making of the contract by its personally disinterested officials, but doubt, if any, being solved in favor of the city. The purchase and the giving of notice were distinct from each other. While the one year’s notice was requisite, the right to purchase was to come into existence at any time after the expiration of the certain definitely ascertained period of fifteen years, and its existence in preesenti was to be preceded by the giving of one year’s notice; and the contract must he regarded as equivalent to an agreement to sell at any time after the expiration of fifteen years, upon performance of the conditions precedent.
We are of the opinion that a notice in writing of intention to exercise the right of purchase at a time after the expiration of fifteen years, served upon the owner of the water-works one year before that time, would constitute the giving of one year’s notice within the meaning of the
Judgment affirmed.
Wiley, P. J., Comstock, Robinson, and Roby, JJ., concur. Henley, C. J., dissents.
Dissenting Opinion
Dissenting Opinion.
I can not agree with the opinion of the majority of the court as to the construction to be given to the contract between the parties to this action. It is true that there can be no controversy concerning the law as stated in the prevailing opinion to the effect that where,doubt exists as to the construction to be given a contract in which a municipal corporation is a party, that the doubt shall be resolved in favor of the city. But, in the case at bar, the construction of the contract for which I contend is the direct effect of giving the words employed therein their plain, ordinary meaning, thus eliminating any reason for resolving any part of the contract in favor of one party more than another. The right granted the city in the contract is the right to purchase after a certain period. It is a right limited as to time and plan, and must be pursued under the terms of the contract. The water company’s rights do not, under the contract, end at the expiration of fifteen years. The right granted w'as for fifty years, and it is not provided that the city could purchase at the expiration of fifteen years, but it is provided that after the expiration of fifteen years, by doing certain things, the city might purchase the property. The failure of the city to give notice at any special time did not forfeit its rights which it could, under the procedure marked out by the contract, enforce any time during the thirty-five years following the expiration of the fifteen years. The water company’s rights were not for fifteen years, but for fifty years. Its ownership and control were as absolute at the expiration of forty years as at the
Under the construction given to the contract in the prevailing opinion, any city council elected prior to the expiration of the fifteen-year period could give the notice provided for under this contract. It seems that the best interests of the citizens of the city of Valparaiso would he subserved by holding, as the plain meaning of the words, I think, war
I think the judgment should be reversed.