Am. Waterworks Co. v. State ex rel. Walker

• Decision Date: 15 October 1895
• Citation: Am. Waterworks Co. v. State ex rel. Walker, 46 Neb. 194, 64 N.W. 711 (Neb. 1895)
• Parties: AMERICAN WATERWORKS CO. v. STATE EX REL. WALKER.
• Court: Nebraska Supreme Court

46 Neb. 194

64 N.W. 711

AMERICAN WATERWORKS CO.

v.STATE EX REL. WALKER.

Supreme Court of Nebraska.

Oct. 15, 1895.

Syllabus by the Court.

1.A demurrer to a pleading admits the truth of the facts well pleaded, for the purpose of determining their sufficiency as a cause of action or defense, but it does not admit the correctness of the conclusions of law drawn therefrom by the pleader.

2.A private corporation which procures from a municipal corporation a franchise for supplying the latter and its inhabitants with water, and by virtue of which franchise it is permitted to and does use the streets and alleys of such municipal corporation in the carrying on of its business, becomes thereby affected with a public use, and assumes a public duty.That duty is to furnish water at reasonable rates to all the inhabitants of the municipal corporation, and to charge each inhabitant, for water furnished, the same price it charges every other inhabitant for the same service under the same or similar conditions.

3.Such a corporation has the right to adopt all such rules for its convenience and security as are reasonable and just, and to decline to furnish water to any inhabitant who refuses to comply with such reasonable rules.

4.For such a rule to be valid and enforceable, it must, in itself, be lawful and just, and must not be discriminatory in its nature.

5.A rule of a private corporation engaged in supplying a city and its inhabitants with water in pursuance of a franchise granted by such city provided: “Water rents will be due and payable on the first days of January and July of each year, in advance, at the company's office.* * * If not paid within thirty days after they fall due, the water will be turned off, and not turned on again until all back rents are paid, including a charge of $1.00 for turning the water off and on.”Held, that so much of said rule as required a patron in default for water rents to pay one dollar as a condition precedent to his right to again be furnished with water was unreasonable, discriminatory, and void.

6.A patron of such corporation failed to pay his water rent on July 1st.His default continued to August 17th, when the corporation shut the water off from the patron's premises.August 18th the patron tendered the corporation the water rent fixed by its rules from July 1st to December 31st, and requested that the water might again be turned on, but refused to pay the one dollar required by the rule for turning on and off the water.Held,(1) that the corporation would be compelled, by mandamus, to turn the water on the patron's premises; (2) that the inability of the corporation to collect the one dollar from the patron by the ordinary process of law, because of the latter's insolvency,afforded no excuse to the corporation for not supplying the patron with water.

7.State v. Nebraska Telephone Co., 22 N. W. 237, 17 Neb. 126, followed and reaffirmed.

Error to district court, Douglas county; Irvine, Judge.

Action in the name of the state, on the relation of W. I. Walker, for mandamus to the American Waterworks Company.Relator had judgment, and defendant brings error.Affirmed.

Connell & Ives, for plaintiff in error.

Chas. A. Goss, for defendant in error.

RAGAN, C.

The state of Nebraska, upon the relation of W. I. Walker, filed an application in the district court of Douglas county against the American Waterworks Company(hereinafter called the “water company”) for a peremptory writ of mandamus to compel the water company to furnish the relator water for use at his residence in the city of Omaha.The relator alleged in his application that the water company was a corporation doing business in the city of Omaha; that it was a common carrier and furnisher of water to the city of Omaha and its inhabitants; that it had secured a franchise from the city, in and by which it had the right to use the streets, alleys, and public grounds thereof for laying its water mains and erecting its hydrants; that it was in the possession and use of the streets and alleys of said city for the purpose of supplying said city and its inhabitants with water; that the relator occupied a dwelling on Davenport street, in said city, near which dwelling the water company had a water main; that the water company had furnished him water at his premises since the 10th of February, 1890, at the rate charged by the water company, of $11 per year; that he had always paid his water rents promptly on the 1st days of January and July in each year, as required by the rules of the company until the 1st day of July, 1891; that his water rents were paid up to the last day mentioned; that on said date there became due to the water company $5.50, being the water rents from that date to the 1st day of January, 1892; that he was absent from home on the 1st of July, 1891, and remained absent until about the 1st of August of that year; that, by reason of the press of business, he forgot, after his return, to pay his water rents, until the 17th day of August, when the water company shut the water off from his residence; that on the 18th of August he went to the office of the water company, in the city of Omaha, and tendered it the rent from the 1st day of July, 1891, to the 1st day of January, 1892, and requested the water company to turn on the water at his residence; and that the water company refused to do so.The answer of the water company to the relator's application, so far as material here, alleged that the relator had actual notice of the rules and regulations of the water company; that these rules were reasonable; that they were proper and necessary for carrying on its business and supplying water to its customers, and were enforced against all citizens and customers alike; that among such rules and regulations was the following: “Water rents will be due and payable on the first days of January and July of each year, in advance, at the company's office.* * * If not paid within thirty days after they fall due, the water will be turned off, and not turned on again until all back rents and charges are paid, including a charge of $1.00 for turning the water off and on”; that the relator refused to comply with this rule by paying the sum of one dollar, as required by it, for turning the water off and on at his premises; and that relator was insolvent.The relator submitted a demurrer to this answer, which the district court sustained, and issued the writ prayed for.

1.It is insisted that the judgment of the district court is wrong because the answer alleges, and the demurrer admits, that the charge of one dollar demanded of relator for turning off and on the water was a reasonable charge; that the rule itself was reasonable and proper, and necessary to the carrying on of respondent's business; and that relator was insolvent.But we are of opinion that all these averments of the answer, except the one as to the insolvency of the relator, are mere conclusions of law.“A demurrer to a pleading admits the truth of the facts well pleaded, for the purpose of determining their sufficiency as a cause of action or defense, but it does not admit the correctness of the conclusions of law drawn therefrom by the pleader.”Smith v. Henry County, 15 Iowa, 385;Branham v. Mayor, etc., of City of San José, 24 Cal. 585.

2.The allegation in the answer that the relator was insolvent, we think, tendered an immaterial issue, as will be seen further on.

3.The water company, though a private corporation, by virtue of the franchise granted it by the city of Omaha, and its user of such franchise, became affected with a public use.By accepting...