Ancrum v. Camden Water, Light & Ice Co.

• Decision Date: 09 April 1909
• Citation: 64 S.E. 151,82 S.C. 284
• Parties: ANCRUM v. CAMDEN WATER, LIGHT & ICE CO.
• Court: South Carolina Supreme Court

64 S.E. 151

82 S.C. 284

ANCRUM v. CAMDEN WATER, LIGHT & ICE CO.

Supreme Court of South Carolina

April 9, 1909

Appeal from Common Pleas Circuit Court of Kershaw County; Ernest Gary, Judge.

Action by Anna Calhoun Ancrum against the Camden Water, Light & Ice Company. From a judgment for plaintiff, defendant appeals. Reversed.

Kirkland & Smith, for appellant.

W. B De Loach, for respondent.

WOODS J.

The defendant, Camden Water, Light & Ice Company, appeals from an order of the circuit court overruling a demurrer to the complaint. The question to be decided is whether the complaint states facts sufficient to constitute a cause of action. These are the material allegations: The defendant owns and operates waterworks in the city of Camden, under a contract of date 21st May, 1903, entered into by the city council and the defendant with proper legal sanctions, which conferred upon the defendant the exclusive franchise for 17 years to furnish to the city of Camden water for the extinguishment of fires and other municipal purposes, and to the inhabitants of the city water for private purposes. On 27th June, 1907, a four-story building of the plaintiff was destroyed by a fire, which would have been extinguished without great damage by the fire department of the city, but for the fact that, on account of the negligence of the defendant the water mains and hydrants through which the defendant had contracted to supply water for the extinguishment of fires furnished no appreciable water pressure. The plaintiff had insurance for $3,000, but her net loss from the fire was $12,000, and for this sum she demands judgment against the water company.

The important inquiry whether the defendant is liable to a private citizen under such a state of facts depends, as we shall endeavor to show, on the terms of the contract, which is attached to the complaint as a part thereof. Hence it is necessary to set out in full such portions as bear on the issue. The general undertaking of the defendants as set out in section 1, is "to lay, maintain, and operate a system of water pipes in, over, across, and along the streets, alleys, and public places of and within said city of Camden, for the distribution of water for municipal, domestic, business, and personal uses, and likewise, for the same period, to build, lay, place, operate, and maintain all necessary hydrants, service pipes, stop and valve boxes, and other appliances usually employed in the operation of a municipal waterworks system." The details of the defendant's obligations are contained in these sections:

"(3) That it will use the Johnson Springs, so called, near said city, as its source of supply, and that it will furnish from said source, and from other such sources as may be hereafter agreed upon, to the party of the first part and its successors, and to the inhabitants of the said city of Camden, an abundant and sufficient supply of pure, wholesome and potable water for domestic, business, personal, and municipal purposes, and for the extinguishing of fires, for and during the full time of this contract.

"(4) That it will cause to be constructed as a part of said water system a Jewell gravity filter of five hundred thousand (500,000) gallons daily capacity, and will cause all water introduced into the pipes and distributing system of and within said city to be carefully filtered through said filtering apparatus, and further, and in connection with said filter, will construct a pumping reservoir, with brick walls and metal roof, and of sufficient size to provide a constant supply of water to the pumps, together with a pumping station to be supplied with duplicate engines so arranged that either or both engines may be employed at the same time as occasion may require, and said engines and pumps to be of sufficient capacity to furnish an ample supply of water for the purpose hereinbefore indicated at all times during the term of this franchise. And said plant shall be constructed according to the plans and specifications hereto attached and made a part of this contract. ***

"(7) *** That all pipe, hydrants, and connections shall be of standard weight; that there shall be furnished by said party of the second part to the party of the first part a certificate of manufacturers of said pipe and appliances, showing that the same have been tested at a hydrostatic pressure of 250 pounds to the square inch; that, in addition to the twenty-five (25) fire hydrants now set and connected with the pipe system in said city of Camden, the party of the second part shall set ten (10) other fire hydrants of modern type, with double delivery, so arranged as to connect with hose couplings of two and one-half (2 1/2) inches in diameter. ***

"(9) That the fire hydrants above referred to shall be kept at all times in good repair and ready for immediate service, and so that, when an alarm is given and fire pressure is called for, said hydrants shall furnish efficient streams for extinguishing fires in all portions of said city."

These provisions are found in the contract to secure to the city of Camden, as a party to the contract, compliance by the water company with its obligations:

"(10) That the hydrants shall be in charge of the chief of the fire department, and shall be subject to inspection by him, and in case of any hydrant being found out of repair be shall, in writing, notify the mayor of said city and the superintendent of the waterworks plant; and if the same is not carefully repaired in one week after giving such notice in writing, the city shall have the right to deduct from the hydrant rent, all hereinafter agreed to be paid, the sum of ten (10) dollars per month until said hydrant is put in working order. ***

"(20) The party of the first part, and all users of water under this franchise, shall have the right to inspect the source of supply and all machinery and other appliances employed by the party of the second part in connection with the filtration, storage, pumping, and distribution of water at all times during ordinary business hours; such inspection to be made in good faith, and not for the purpose of harassing or annoying the party of the second part, or in any wise interfering with the performance by it of its public duties under this franchise. ***

"(25) And it is further expressly stipulated and agreed that, in the event that the party of the second part, its successors or assigns, shall willfully fail, neglect, or refuse to well and truly carry out and perform all and singular the duties, agreements, and covenants hereby imposed, then and in such event this franchise and contract and all rights and privileges granted thereby by said first party to the second party shall cease and determine, and be thereafter held and deemed to be null and void, anything herein to the contrary notwithstanding: Provided, however, that temporary failure to furnish water and service under this contract, due to breakage or other casualty, shall not be deemed to be a failure or refusal on the part of the second party hereunder."

In Black v. Columbia, 19 S.C. 424, 45 Am. Rep. 785, a municipal corporation owning its own waterworks was held not to be liable to an inhabitant of the city, whose property was destroyed by fire, when it would have been saved, but for the neglect of the city to provide suitable engines or fire apparatus, or to provide and keep in repair public cisterns. Since that case was decided municipal corporations have in this state by statute been made liable for injuries to persons or property received "through a defect in any street causeway, bridge or public way, or by reason of defect or mismanagement of anything under the control of the corporation within the municipal limits." Civ. Code 1902, § 2023. We are not now concerned with the liability of a city for a fire loss of one of its inhabitants, which would not have occurred, but for the negligence of the city to provide an adequate supply of water to extinguish the fire. This liability would have to be passed upon as a preliminary question in the case, if the law imposed upon a city the duty of providing public waterworks for it seems apparent, where a public duty is required of a municipality, one who contracts with a city to perform for it the duty imposed on it by law incurs the same liabilities that the law imposes on the city itself. But the statute law of the state does not require municipal corporations to maintain waterworks. On the contrary, the statutes on the subject negative the idea of command or requirement, in that they in express terms merely authorize towns and cities to build and operate waterworks as municipal property. 22 St. at Large, p. 83; 23 St. at Large, p. 49. Hence, when the statute of 1902 (23 St. at Large, p. 1039) "empowered cities and towns to grant to private persons or corporations the exclusive franchise of furnishing light and water to said cities and towns and inhabitants thereof," without imposing any limitations on the power, except that the franchises, to be valid, should be approved by a vote of two-thirds of the board of aldermen and a majority of the popular vote, and that the grant or the franchise should provide a maximum water rate, it left the municipality free as to the other terms and conditions of the franchise. Thus there was no obstacle to the city council providing, in the contract and franchise with the water company, any safeguards for the welfare of the city or its inhabitants, who were to use the water, or whose property was to be protected from fire loss; for, even if it be considered an illegal or unfair discrimination against other taxpayers for the city to pay from the general municipal revenue for such indemnity for all whose property was subject to...