Asher v. The Hutchinson Water
| Decision Date | 07 March 1903 |
| Docket Number | 13,327 |
| Citation | 71 P. 813,66 Kan. 496 |
| Parties | A. E. ASHER et al. v. THE HUTCHINSON WATER, LIGHT AND POWER COMPANY et al |
| Court | Kansas Supreme Court |
Decided January, 1903.
Error from Reno district court; M. P. SIMPSON, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. CITIES AND CITY OFFICERS -- Water-works -- Removal of Mains. A contract by ordinance between a city and a water company, that the latter will lay water-mains and supply the inhabitants with water on certain streets of the city, may, after such mains are laid, be so modified and changed by the city and water company as to require the latter to remove its mains from certain streets where, in the judgment of the council, public necessity no longer requires their continuance, to other portions of the city where public necessity requires that mains should be laid, and injunction will not lie, at the suit of an individual, to prohibit the city and water company from making such change notwithstanding it may greatly decrease the value of his property.
2. CITIES AND CITY OFFICERS -- Injunction by Individual will not Lie. Where a city determines that the public welfare will be best subserved by removing to another part of the city certain water-mains upon which there are seventeen fire-hydrants maintained at public expense, and where there is no demand for fire protection and but one private consumer, injunction will not lie, at the suit of such private consumer, to restrain the removal of such mains, notwithstanding the removal thereof would render his property practically valueless for the purpose for which it was improved.
George A. Vandeveer, Frank L. Martin, and Harry D. Vandeveer, for plaintiffs in error.
H. Whiteside, for defendants in error.
OPINION
The plaintiffs in error commenced this action in the court below to enjoin the defendants from taking up a certain water-main which ran to, and supplied, plaintiffs' stock-yards with water. A temporary restraining order was granted, which was set aside and an injunction refused. The plaintiffs prosecute this proceeding.
The Hutchinson water-works were constructed under an ordinance which required the company, and its assigns, to extend its mains and place fire-hydrants along the streets of the city, in addition to those designated in the ordinance, at such times and places as might thereafter be designated by the city. The ordinance also provided that, in addition to furnishing water to extinguish fires, the company, its successors or assigns, should furnish water to the inhabitants living or doing business along the mains or pipes in accordance with such rules and regulations as might become necessary. The defendant company became the owner of the water-works and succeeded to the rights, privileges and obligations of the grantees in the franchise. Afterward the city, by ordinance, extended the water-main on Fourth avenue to the stock-yards, to which main the then owner of the yards attached. Thereafter the plaintiffs became the owners of the yards. Subsequently the city passed ordinance No. 402, which provided as follows:
"In addition to furnishing water from the fire-hydrants for the protection and extinguishment of fires, as herein contemplated, the said Hutchinson Water, Light and Power Company, its successors or assigns, shall furnish water to the said city and the inhabitants thereof, living and doing business along the mains and pipes, for all purposes, and in accordance with such rules and regulations as may be deemed necessary to the successful operation of said works."
It was alleged in the petition that the defendant threatened to, and would, unless restrained by the court, take up its main leading to plaintiffs' yards, thus cutting off the water-supply, and thereby rendering its property valueless for the purposes for which it was improved and for which it was being used.
The defendant admitted that it intended to take up such water-main, but alleged that in doing so it was acting under the permission and direct authority of the city, and for the purpose of replacing the main and hydrants upon other streets where fire protection is greatly needed and private consumers numerous; that such authority was in the following resolution:
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