Clark v. Olson, 24739.

• Decision Date: 10 April 1934
• Docket Number: 24739.
• Citation: 31 P.2d 534,177 Wash. 237
• Court: Washington Supreme Court
• Parties: CLARK et al. v. OLSON.

31 P.2d 534

177 Wash. 237

CLARK et al. v. OLSON.

No. 24739.

Supreme Court of Washington, En Banc.

April 10, 1934

Appeal from Superior Court, Skagit County; Edwin Gruber, Judge.

Mandamus proceeding by Abb Clark and Jake Stafford against Frank Olson. From a judgment for plaintiffs, defendant appeals.

Reversed and remanded, with directions.

MAIN J., BEALS, C.J., and BLAKE, J., dissenting.

Thomas Smith and James G. Smith, both of Mount Vernon, for appellant.

Alfred McBee and W. L. Brickey, both of Mount Vernon, for respondents.

MILLARD, Justice.

Abb Clark and Jake Stafford, owner and tenant, respectively, of residence in Rockport, applied to the superior court for Skagit county for a writ of mandamus requiring Frank Olson as the owner of a water system in Rockport, operated for hire, to supply water to the Clark Stafford residence. The trial court found that Olson declined, without right, after demand and tender of the customary charge therefor, to supply the petitioners with water. The court concluded that Olson was operating in Rockport, within the meaning of the statute (Rem. Rev. Stat. § 10344), a water system for hire, and that Olson was 'operating and conducting a public utility.' Judgment was entered requiring Olson to connect the water pipe line, which runs from the petitioners' property, with Olson's water main and to allow the water to flow through the same. Olson has appealed.

The statute provides that every person owning or operating a water system for hire is a water company, and that a water company as thus defined is a public service company.

'The term 'water system,' when used in this act, includes all real estate, easements, fixtures, personal property dams, dikes, head gates, weirs, canals, reservoirs, flumes or other structures or appliances operated, owned, used or to be used for or in connection with or to facilitate the supply storage, distribution, sale, furnishing, diversion, carriage apportionment or measurement of water for power, irrigation, reclamation, manufacturing, municipal, domestic or other beneficial uses for hire.

'The term 'water company,' when used in this act, includes every corporation, company, association, joint stock association, partnership and person, their lessees, trustees or receivers appointed by any court whatsoever, and every city or town owning, controlling, operating, or managing any water system for hire within this state. * * *

'The term 'public service company,' when used in this act, includes every common carrier, gas company, electrical company, water company, telephone company, telegraph company, wharfinger and warehouseman as such terms are defined in this section.' Rem. Rev. Stat. § 10344.

Proceeding from the premise afforded by the statute, respondents argue that it is the duty of appellant to supply them with water.

The facts are summarized as follows: Rockport is an unincorporated village surrounded by hills in the eastern part of Skagit county. The inhabitants obtain water for domestic purposes from several creeks running down from the north. No one water system or pipe line serves even a majority of the inhabitants. One witness testified: 'It seems everybody has a water system.' The platted portion of the village consists of about six blocks, in and around which are about fifty houses. The rights of way of the Great Northern Railroad, which run east and west through the county, and the railroad to the Skagit power project of the city of Seattle, are in the village south of the platted portion. To the south of the railroads flows that Skagit river. West of the platted portion is a farm, formerly owned by Johnson and Janson, who, more than fifteen years ago, platted the town site and constructed seven houses. These two men, to get water to the houses they had built, went to the east of the platted portion and constructed a tank for the impounding of water. They then installed a pipe line leading from the tank to the houses. In 1928 or 1929, appellant and wife purchased the farm. Thereafter they replaced the tank on the hill east of the platted portion and erected three houses. The ten houses have continuously, since that time, been supplied with water from that tank and pipe line. Appellant sold the ten houses to various persons, under real estate contracts of sale. The contracts do not so recite, but it fairly appears that the vendor and vendee understood that the supplying of water from appellant's tank to each of the ten houses was part of the consideration of the contract. It further appears that, when the purchase price of the real estate contracts had been paid, the appellant intended to charge for the water supplied by him in the future to those houses. The appellant also supplies water to nine other houses in Rockport. He charges each user $1 per month or $10 per annum if paid in advance. There is no showing that appellant ever intended to engage in a public service; that he was in the business of selling water to the public at a profit. He never solicited any one to take water from his pipe line, but, if any one desired to connect with his pipe line, he granted permission, and such water user paid to him $1 a month or $10 per annum.

'Water systems' other than appellant's, and similar to his, are in Rockport. Of the fifty structures in Rockport, appellant serves nineteen, which include ten of his own houses. Respondent Clark's house was supplied by appellant in June and July, 1932, when the tenant therein was a Mr. Rice. The pipe line running from the property to appellant's pipe line was disconnected by appellant when Rice vacated the property in July, 1932. No rental for water service to that house has been paid by any one to appellant since that time. The house remained vacant until September, 1933, when it was rented to respondent Stafford. Respondent Clark's demand at that time for the connection of the pipe line from his property with appellant's pipe line was refused.

Rockport is not incorporated. Appeallant did not, nor did any of his predecessors in interest, have a franchise from the county commissioner. The services of the appellant consisted of supplying water to ten of his vendees and to nine other water users who were permitted to tap his pipe line and transmit water to their own individual premises. The charge made therefor was a nominal one, and was primarily for the purpose of assisting in the maintenance of the water system and not for the purpose of making any profit on the operations. Such service was not sufficient to make the water system of the appeallant a public utility offering its water to the general public. Appellant's supplying of water to his vendees, to his neighbors and a few others, under the facts of this case, did not constitute appellant's water system a public utility; there was no dedication of his water system to a public use so as to entitle the public generally to demand water service as a matter of legal right.

The statute (Rem. Rev. Stat. § 10344), quoted above, provides that every person owning or operating any water system for hire is a water company, and that a water company as thus defined is a public service company.

Section 23, art. 12, Constitution of California, declares that every private corporation furnishing water directly or indirectly to or for the public is a public utility. Section 1, p. 84, whenever any corporation sells water that, whenever any corporation sells water to any person, such corporation is a public utility and subject to the jurisdiction, control, and regulation of the Railroad Commission. The California Public Utilities Act (St. 1915, p. 115, § 2(x) defines a water corporation as including every corporation or person, etc., owning, controlling, operating, or managing any water system for compensation within the state.

Our statute and the law law of California differ not in any essential particular.

In Van Hoosear v. Railroad Commission, 184 Cal. 553, 194 P. 1003, 1004, the petitioner sought by an original application to the Supreme Court of California to annul an order made in a proceeding upon its own initiative, finding that the petitioner, Van Hoosear, was engaged in the business of supplying water to the public, had been charging rates not authorized by the commission, and had discontinued his service without the permission of the commission, and directing him to resume service and supply water at rates fixed by the order. The petitioner had a small water plant upon his farm, originally installed to supply water for his own use on the farm, but from which he began to supply his surplus water to some of his neighbors as a matter of accommodation, continuing for some years to do so, but finally discontinuing such service when he sold his farm. Two years prior to the commencement of the proceeding in which he sought annulment of the Railroad Commission's order requiring him to resume service and supply water, Van Hoosear petitioned the commission for leave to discontinue his service. Such leave was refused, after a hearing Before the commission, and Van Hoosear continued the water service thereafter without anything to indicate that the did not do so in acquiescence with the order of the commission and in the character of a public utility operator, which he and the commission assumed he had. The court said that, if it were not for those circumstances, it was exceedingly doubtful whether the order of the commission could be sustained. The court stated the only question was as to the character of the petitioner, and said:

'The test to be applied is whether or not the petitioner held himself out, expressly or impliedly, as engaged in the business of supplying water to the public as a class, not necessarily to all of the public, but to any

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