95 F. 539 (S.D.Ala. 1899), Bienville Water Supply Co. v. City of Mobile

Citation:95 F. 539
Case Date:May 22, 1899
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 539

95 F. 539 (S.D.Ala. 1899)




United States Circuit Court, S.D. Alabama.

May 22, 1899

Bestor & Gray and R. H. Clarke, for complainant.

Boykin B. Boone and E. L. Russell, for defendant.

TOULMIN, District Judge.

This is a bill in equity, filed by the complainant to enjoin the defendants from making or carrying out any contracts for supplying water to the inhabitants of the city of Mobile, or for the construction of a system of waterworks for that purpose, during the continuance of the contract made between the complainant and said city (which is set out and exhibited as a part of the bill), and to enjoin the defendants from proceeding to build or acquire a system of waterworks, to be owned by said city, to bring water into the city during the continuance of said contract. The defendants have filed a demurrer to the bill, setting up various grounds of objection thereto which it is unnecessary to specifically mention here. The facts as shown by the averments of the bill are substantially as follows:

The complainant is a corporation chartered by the legislature of the state of Alabama, for the purpose, among other things, of supplying water to the city of Mobile and its inhabitants. It was authorized to construct all needed canals, ditches, pipes, aqueducts, etc., as may be best suited for the purpose, and was 'charged with the duty of introducing into the city such supply of pure water as the domestic, sanitary, and municipal wants may require. ' In the execution of this purpose the complainant laid mains and pipes in the streets of the city, and established hydrants and fire plugs therein, and built a reservoir, and erected pumps connecting with such mains and pipes, at large expense to itself. Said property is now is use by complainant for the purpose of supplying said city and inhabitants with water, which it now doing. The city of Mobile is a municipal corporation chartered by the legislature of the state. On the 15th day of August, 1888, the complainant entered into a contract with said city by which it agreed and contracted to furnish for the use of the city 260 fire hydrants, and to furnish water for fire service of a certain number of streams and pressure, and further agreed that the city should have

Page 540

the unrestricted use of said hydrants for such fire purposes, and the free use of water for all municipal buildings. The complainant further agreed not to charge, during the continuance of the contract, for domestic use, a greater or higher rate for water than that named or specified in the contract. In consideration of the undertakings and stipulation of the complainant, as recited in the contract, the city agreed to pay to complainant, for the use of said hydrants, at the rate of $50 a hydrant per annum during the continuance of the contract. It was mutually agreed that the contract should be for 6 years, the payments to be made monthly. On the 14th day of April, 1891, the contract was extended for a period of 12 years from the 1st day of July, 1888, to wit, to the 1st day of July, 1900, and is now in full force and effect.

The bill avers that the complainant has complied with all of the obligations and requirements of the contract on its part, is still doing so, and is ready and willing to continue so to do. It avers that the city of Mobile has violated, and is proceeding to further violate, its said contract with the complainant, in that, on the 14th day of May, 1898, it had bought and taken possession of a waterworks plant, and is now operating the same, selling water to customers, and cutting rates below those fixed in said contract, and actually competing in the business of selling and furnishing water to its inhabitants, and has taken away some of complainant's water customers, thereby decreasing the latter's income. It is further averred in the bill that said defendant is building another system of waterworks, to supply itself and its inhabitants with water, before the expiration of said contract, and that it claims the right so to do under the...

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