Boise Artesian Hot Cold Water Company v. Boise City No 573 Boise City v. Boise Artesian Hot Cold Water Company No 639

Decision Date16 June 1913
Docket NumberNos. 573 and 639,s. 573 and 639
Citation57 L.Ed. 1400,230 U.S. 84,33 S.Ct. 997
PartiesBOISE ARTESIAN HOT & COLD WATER COMPANY, Limited, Plff. in Err., v. BOISE CITY. NO 573. BOISE CITY, Plff. in Err., v. BOISE ARTESIAN HOT & COLD WATER COMPANY, Limited. NO 639
CourtU.S. Supreme Court

Messrs. Richard H. Johnson and Richard Z. Johnson for the Boise Artesian Hot & Cold Water Company.

[Argument of Counsel from page 85 intentionally omitted] Messrs. Charles C. Cavanah, Charles F. Reddoch, John J. Blake, and John F. MacLane for Boise City.

Mr. Justice Lurton delivered the opinion of the court:

These cases come here from the district court direct, upon a writ of error sued out by the water company, and a cross writ of error sued out by Boise City, the defendant below.

The water company is a corporation of West Virginia, authorized to carry on its business in Idaho. It brought this action to recover from the city for water furnished for fire purposes. The city defended upon several grounds, only two being now urged. The first was that the water company was under a statutory obligation to furnish water for fire purposes free of charge; and the second, that the city was under no legal obligation to pay, because there was neither ordinance nor contract for the water claimed to have been furnished.

By way of set-off or counterclaim, it asserted the liability of the water company for a large sum of money, claimed to be due on account of monthly 'license fees,' which, by ordinance, it was required to pay for the use of the streets of the city for laying and maintaining its distributing water pipes. The water company denied the validity of the ordinance imposing the 'license fees' claimed, asserting that, by ordinance long prior in time, its predecessor in right and title had been granted an irrevocable easement in the streets for the purpose of laying its pipes therein, and that the later ordinance under which the city claimed the right to charge rental for their use and occupation with its pipes was an impairment of its vested street easement, and in contravention of the Constitution of the United States.

The court below ruled that the ordinance under which the water company claimed its right to lay and maintain its pipes in the streets of the city was a revocable license, and that the requirement of the later ordinance that it should thereafter pay monthly the sum of $300 for the privilege of so occupying the streets with its pipes was not an impairment of any contract, and was in every respect valid.

The foundation of the street rights asserted by the water company is an ordinance of October 3, 1889, in these words: An Ordinance Granting Eastman Brothers the Right to Lay Waterpipes in Boise City.

The Mayor and Common Council of Boise City Idaho, ordain:

Section 1. H. B. Eastman, and B. M. Eastman and their successors in interest in their waterworks, for the supply of mountain water to the residents of Boise City are hereby authorized to lay and repair their waterpipes, in, through, and along and across the streets and alleys of Boise City, under the surface thereof, but they shall, at all times, restore and leave all streets and alleys, in, through, along, and across which they may lay such pipes, in as good condition as they shall find the same, and shall, at all times, promptly repair all damage done by them or their pipes, or by water escaping therefrom.

Section 2. This ordinance shall take effect from and after its passage and approval.

Approved October 3, 1889.

This was accepted, and the grantees named therein immediately began the construction of their plant. Later, in July, 1890, similar street rights were granted to a corporation of Idaho known as the Artesian Water & Land Improvement Company. This lastnamed company accepted the ordinance, and expended much money in the construction of another water-supply system. At some date prior to 1895, apparently on March 28, 1891, each of these grantees conveyed and assigned all of their rights, franchises, and easements to the present plaintiff in error. It has since that time made large expenditures in improving the plants acquired from its predecessors, and has since maintained its pipes in the streets, and has continuously furnished water to the city for fire purposes and to private consumers. The ordinance which is claimed to be an impairment of the street rights acquired by the ordinance of 1889 and long occupancy was passed on June 7, 1906, and is in these words:

An ordinance requiring the Boise Artesian Hot & Cold Water Company, a private corporation, organized and existing under and by virtue of the laws of the state of West Virginia, to pay to Boise City, a municipal corporation of the state of Idaho, on the 1st day of each and every month, a monthly license of $300 for the use and occupancy of the streets and alleys of said Boise City, Idaho, in furnishing water to the residents of said city.

Whereas, Boise City is a municipal corporation organized and existing under and by virtue of the laws of the state of Idaho, and

Whereas, the Boise Artesian Hot & Cold Water Company is a private corporation organized, existing, and operating under the laws of the state of West Virginia, and

Whereas, said Boise City, on the 3d day of October, 1889, approved an ordinance granting to H. B. Eastman and B. M. Eastman and their successors in interest in their waterworks, a license for an indefinite period to lay and repair waterpipes in the streets and alleys of said Boise City, through which water is being furnished by said company to the residents of said city, for profit, and

Whereas, the said Boise Artesian Hot & Cold Water Company are the successors in interest of the said H. B. Eastman and B. M. Eastman in and to said waterworks Now, therefore, Boise City does ordain as follows:

Section 1. That the said Boise Artesian Hot & Cold Water Company, a private corporation organized and existing under and by virtue of the laws of the state of West Virginia, the successors in interest of the said H. B. Eastman and B. M. Eastman in and to said waterworks now being operated and said license granted by said ordinance of October 3, 1889, in said Boise City, are hereby required to hereafter pay to said Boise City on the 1st day of each and every month a monthly license of $300 for the privilege granted by said ordinance of October 3, 1889, to lay, and repair waterpipes in the streets and alleys of said city through which water is being furnished to the inhabitants of said Boise City by said company.

Section 2. That demand is hereby made by said Boise City of and from said the Boise Artesian Hot & Cold Water Company to hereafter pay to said Boise City on the 1st day of each and every month said monthly license of $300 required by section 1 of this ordinance.

Section 3. That the city clerk of said Boise City is hereby required, after this ordinance is in force, to notify said the Boise Artesian Hot & Cold Water Company of the requirements of this ordinance to pay said license as aforesaid.

Section 4. That nothing in this ordinance shall be construed or understood as granting any privilege or authority for any other term than that provided for in the aforesaid ordinance of October 3, 1889.

Section 5. This ordinance shall take effect and go in force from and after its passage and approval.

Upon the issues there was a judgment against the city for the full amount claimed as due for water furnished for fire purposes, less the agreed amount of the city's counterclaim, which, by direction of the court, was found for it, being so much of the claim for rentals as had ac- crued after April 1, 1909, and before the bringing of this action.

The right of the water company to come direct to this court is conferred by § 5 of the judiciary act of 1891 [26 Stat. at L. 827, chap. 517, U. S. Comp. Stat. 1901, p. 549], it being a case in which it was 'claimed' that the ordinance imposing license fees, as a law of the state, was in contravention of the Constitution of the United States. Loeb v. Columbia Twp. 179 U. S. 472, 477, 45 L. ed. 280, 285, 21 Sup. Ct. Rep. 174. This court has, therefore, jurisdiction to review not only the constitutional question which arose in the case, but every other question properly arising.

The city of Boise has assigned error upon the judgment which was rendered against it upon the claim of the water company for water furnished the city for fire purposes. That it may do so upon its cross writ of error is plain. Field v. Barber Asphalt Paving Co. 194 U. S. 618, 48 L. ed. 1142, 24 Sup. Ct. Rep. 784.

The grant of the right to lay water pipes upon the streets for the purpose of distributing water, found in the ordinance of October 3, 1889, purports to be nothing more than a grant of the right to occupy the streets of the city with the distributing pipes of the water company. It was accepted, and about $200,000 has been expended in the construction of the necessary works and the laying of its system of pipes under the streets. The assertion of the right to require the company, after so many years of occupation, to pay a monthly rental for the use of the streets, is grounded upon the claim that under the grant to the Eastmans it had obtained nothing more than a revocable license, and its occupation of the streets was therefore subject to be terminated at any time.

The right which is acquired under an ordinance granting the right to a water company to lay and maintain its pipes in the streets is a substantial property right. It has all of the attributes of property. It is assignable, and will pass under a mortgage sale of the property and franchises of the company which owned it. Dill. Mun. Corp 5th ed. § 1265; Detroit v. Detroit Citizens' Street R. Co. 184 U. S. 368, 395, 396, 46 L. ed. 592, 610, 611, 22 Sup. Ct. Rep. 410; Louisville v. Cumberland Teleph. & Teleg. Co. 224 U. S. 649, 661, 58 L. ed. 934, 939, 32 Sup. Ct. Rep. 572; Detroit Citizens'...

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