Aurora Water Company v. City of Aurora

• Decision Date: 02 July 1895
• Parties: Aurora Water Company, Appellant, v. City of Aurora
• Court: Missouri Supreme Court

31 S.W. 946

129 Mo. 540

Aurora Water Company, Appellant,
v.
City of Aurora

Supreme Court of Missouri, Second Division

July 2, 1895

Appeal from Lawrence Circuit Court. -- Hon. W. M. Robinson, Judge.

The ordinances called for in the opinion are as follows:

ORDINANCE NO. 35.

"Be it ordained by the board of aldermen of the city of Aurora, as follows:

"Section 1. That the city of Aurora, in the county of Lawrence and state of Missouri, is hereby authorized to contract with J. Guiney, his associates and assigns, as hereinafter provided and specified, for the term of twenty years from and after the legal passage of this ordinance, unless sooner purchased, as hereinafter provided by said city in section 10 of this ordinance and contract, the exclusive right and privilege of erecting, constructing, maintaining, and operating waterworks in the city of Aurora, and state of Missouri, for supplying water from Spring river or Honey creek, not polluted by excreta, sewerage, or offensive matter of any kind, for domestic, manufacturing, fire extinguishment and the various other uses of water that may be needed in the city, and to regulate the same, provided that the rate shall not exceed twenty-five cents per thousand gallons to the various consumers; that for the furtherance of said water supply the said J. Guiney, his associates and assigns, have the exclusive right to use all or any streets, lanes, alleys, and public places necessary in which to lay and maintain main and private water pipes, street hydrants and all appurtenances necessary to supply water to the various consumers thereof, provided it is made a part of the contract that all excavations in streets, alleys, lanes and public places, shall be made and placed in as good condition as they were before the making of such excavations.

"Sec. 2. There shall be located at or near the highest point in the city a standpipe, fifteen feet in diameter, by one hundred feet high, for the distribution of water throughout the city, with a storage capacity of not less than one hundred and fifty thousand gallons.

"Sec. 3. The pumping machinery located at the source of supply shall consist of two first-class Dean, Knowles, Worthington, or any other standard pumps equally as good, and boilers and appurtenances necessary to render the operation complete, and arranged to work separately or combined. The pumping capacity shall not be less than one million gallons per day, and sufficient to supply all the water that may be required for the various uses in the said city, during the continuance of this ordinance. The boiler and pump room shall be a modern structure of brick or stone of ample size for its pumping machinery. The filtering process at the source of supply will be of the latest of modern filtration, which will meet the requirements of the city and the inhabitants thereof.

"Sec. 4. There shall be not less than five miles of water mains for the distribution of water within the city limits. The diameter of said water mains shall not be less than four inches, and may be as large as ten, or greater, if necessary, inside diameter, and shall be laid two and one half to three feet below the graded streets. The quality of the said main water pipes shall be first quality standard iron water pipes, and tested to three hundred pounds hydrostatic pressure to the square inch. The pipe distribution shall be so provided with gate valves set with iron boxes, and so connected with the mains, that the said distribution pipes may be divided into sections for repairs. The said five miles of mains shall be located upon such streets as the board of aldermen shall direct by resolution.

"Sec. 5. There shall be located on and connected with the main pipe distribution, at such points in said city as the board of aldermen may designate, sixty double tipped, nonfreezing fire hydrants, for fire purposes, provided with two and one half inch tips for hose connections. The hydrants shall be Chapman, or some other standard hydrants, the hydrants to be kept in repair and supplied with water by the said J. Guiney, his associates and assigns, during the continuance of this ordinance and contract.

"Sec. 6. Extension of main pipes shall be laid down by a resolution of the board of aldermen, setting forth where the extensions are to be made and giving the number of feet in such extensions, provided that the said city shall include in the resolution or ordinance of extension, at least one fire hydrant for every five hundred feet, or major part thereof, of pipe so ordered laid down, and the payment of the rental for the use thereof for fire purposes, and set forth in section 7 governing additional hydrants, and that there shall be at least one resident consumer who shall not pay less than $ 6 per annum, for the use of water therefrom, for every one hundred and fifty feet of pipe so ordered laid down, or asked for as a reason for such extension.

"Sec. 7. The said city of Aurora hereby agrees to and does rent from said J. Guiney, his associates and assigns, sixty fire hydrants for the full term of this ordinance, from and after the completion of the waterworks, as herein set forth, sixty fire hydrants located on the water main, as herein provided, and the said city of Aurora does hereby bind itself to pay to the said J. Guiney, his associates and assigns for the use of said hydrants for the supplying of water for the extinguishing of fires, flushing of gutters, and fire department uses, the sum of $ 3,600 per annum, for the sixty original hydrants, or $ 60 each, and all additional hydrants the city may order erected the sum of $ 45 for each and every additional hydrant so ordered erected, and all hydrant rental shall be paid in semiannual installments, on the first days of January and July of each year during the continuance of this ordinance and contract, and in consideration of the above agreement the said J. Guiney, his associates and assigns, agree and bind themselves to furnish for the use of said city and the inhabitants thereof a constant and uninterrupted supply of water, during the whole term of said ordinance and contract.

"Sec. 8. Additional hydrants shall be erected on water mains, or extensions to be laid, when so ordered by resolution or ordinance of the board of aldermen of said city, and the additional hydrants when erected shall be kept in repair and supplied with water by the said J. Guiney, his associates and assigns, the same as to the original sixty as aforesaid, the rental of said hydrants to be as provided for in section 7 of this ordinance, and to commence when the said hydrants are ready to supply water and the city clerk notified thereof in writing.

"Sec. 9. Any money due the said J. Guiney, his associates and assigns, arising out of the provisions of this ordinance and contract shall bear eight per cent annual interest until paid.

"Sec. 10. Said city shall have the right to purchase the waterworks and all appurtenances connected therewith, at the expiration of ten years from the date of their completion, and at the expiration of each succeeding year thereafter, at their equitable value, and if the said J. Guiney, his associates and assigns, do not agree upon their value, and the terms of sale of said waterworks and appurtenances, it shall be determined and fixed by three disinterested persons, one of whom shall be chosen by said J. Guiney, his associates and assigns, and one by the said city, and the two chosen to select a third man, and if the three thus selected do not agree upon said value and the terms of sale, then said value and the terms of sale shall be determined by the judges of the county court of Lawrence county, Missouri. In case said waterworks property shall be incumbered by mortgage, deed of trust or other incumbrance at the time of such purchase, such incumbrance shall be subject to the right of the city to purchase, as above provided, and upon such purchase and as a part of the price thereof said second party shall assume the payment thereof, provided that in no case shall the city, second party, assume or become liable for any incumbrance or liability of such waterworks or of the said first party or assigns, in connection therewith, in excess of the value of the waterworks property ascertained as above required, and provided also that the amount of the incumbrance or liability, if any, at the time of such purchase, shall be deducted from the price paid by said city. The city shall not in any case purchase the waterworks if the incumbrance thereon at the time exceeds the appraised or ascertained value thereof, but the city shall in no event purchase said waterworks without the consent of two thirds of the qualified voters of said city, voting at a special election held for that purpose.

"Sec. 11. After the completion of the waterworks the fire hydrants shall be under the control, in charge of the city, its mayor, fire marshal, or such officers as the city shall direct, for fire purposes, and the flushing of gutters; provided that in flushing gutters no stream to exceed one inch in diameter shall be used to exceed sixty minutes in one day, and not oftener than three times in one week, and no other person except those under authority of the city shall open or close them, and said city hereby agrees to pass all necessary ordinances for the protection of said hydrants and appurtenances of the waterworks in construction and operation of the same. It is hereby agreed that the said J. Guiney, his associates and assigns, shall have the right to make all needful rules for the protection of said waterworks and their operations, the tapping of mains, the proper size of service pipe, the appliances to be used in and on outside appliances connected with said waterworks for supplying consumers with water and for the shutting off of water for the nonpayment of rent by private consumers, or for waste, or for any wrongful use of the water.

"Sec...