Ball v. Texarkana Water Corporation

• Decision Date: 14 April 1910
• Parties: BALL v. TEXARKANA WATER CORPORATION.
• Court: Texas Court of Appeals

127 S.W. 1068

BALL v. TEXARKANA WATER CORPORATION.

Court of Civil Appeals of Texas.

April 14, 1910.

Appeal from District Court, Bowie County; P. A. Turner, Judge.

Suit by F. M. Ball against the Texarkana Water Corporation. From a judgment for defendant, entered after dismissal of the complaint, plaintiff appeals. Reversed and remanded for new trial.

This suit was commenced by appellant, F. M. Ball, as plaintiff below, against the appellee, Texarkana Water Corporation, in the district court of Bowie county, on August 10, 1907, by petition for injunction. By an amended petition the plaintiff alleged, in substance, as follows: That the appellee is a corporation, and owns and operates a water plant in the city of Texarkana, Tex., using the streets of said city in which its pipes are laid for conveying water for distribution to its customers, by virtue of a franchise granted by the city council on November 14, 1890. That by the express terms of said franchise, in section 7, the said city reserved the right to fix the water rate at fair and reasonable prices. Said section, as copied in the petition, is as follows: "In addition to the furnishing of water for the prevention and extinguishment of fires as hereinbefore specified, the said Texarkana Water Company, its successors and assigns, shall furnish water to the inhabitants thereof doing business along the mains or pipes for all purposes. And in accordance with such rules and regulations as may be deemed necessary to the successful operation of such works at fair and reasonable rates." That at the time said franchise was granted said city was chartered, under the general laws, as a city of 1,000 inhabitants and over. That January 4, 1907, while still so incorporated, the city council passed an ordinance fixing the rates for measured water at 4 cents per 100 gallons when the quantity consumed should average less than 100 gallons per day, and at 3½ cents when the quantity consumed should average from 100 to 1,000 gallons per day, and that such rates were fair and reasonable. That the appellant is a consumer of the water supplied by appellee, and resides with his family on a street in said city along which are the mains and pipes of the water corporation. That he and family depend solely upon such water supply for drinking, sewerage, and all domestic purposes, and that there is no source of water for such purposes elsewhere at hand. That he used water at his residence during May, June, and July, 1907, for which he has offered to pay at the rates fixed by the city, but that the water corporation refuses to accept payment according to said rates, and is demanding payment at the rate of 50 cents per 1,000 gallons, which, it is alleged, is unfair and exorbitant. That the defendant, by means of the same plant, also furnishes water to Texarkana, Ark., having about the same population as Texarkana, Tex. That said two cities are only divided by an imaginary state line, and the physical conditions of the two are similar in all regards, "and the consumption of water about equal in each said city, and the waterworks in the said dual city is a unit, as the pipes and connections are joint and continuous, and a rate that is fair and reasonable in Texarkana, Tex., is fair and reasonable in Texarkana, Ark., and vice versa." That the rates fixed by the ordinance, aforesaid, were and are the same subsisting between the defendant and the city of Texarkana, Ark., and its inhabitants for like service and quantity. That because of plaintiff's failure to pay the rate demanded by defendant it is threatening to and will cut off plaintiff's supply of water, and thereafter refuse to let plaintiff have water from its pipes and mains unless defendant is restrained, etc. That the cutting off of his supply of water would result in his great and irreparable hurt and injury for which no adequate remedy at law exists. For which reasons plaintiff prayed that the defendant be restrained: First, from cutting off his water supply; and, second, "from charging or requiring the plaintiff to pay therefor hereafter a sum of money in excess of the rates as fixed by the said ordinance." There was also a prayer for general relief. Upon the hearing of the cause the district court sustained defendant's general demurrer to the petition; and, the plaintiff declining to amend, a judgment of dismissal was entered, from which an appeal has been perfected to this court, and error assigned.

F. M. Ball and R. P. Dorough, for appellant. W. H. Arnold and Hart, Mahaffey & Thomas, for appellee.

MOORE, Special Chief Justice (after stating the facts as above).

The sole question to be decided is as to whether or not the trial court committed error in sustaining appellee's general demurrer to appellant's petition, the material averments of which are stated above. If upon any material phase of the facts, as alleged, the appellant is entitled to equitable relief by injunction, the judgment must be reversed, and the cause remanded for a trial upon the facts. It is a well-established rule that as against a general demurrer the allegations in a pleading are admitted to be true, and every reasonable intendment from such allegations, taken as a whole, must be indulged in favor of the pleading; but the demurrer does not, of course, admit the truth or correctness of any legal conclusion stated in the pleading. While it is alleged in the petition that the city of Texarkana by the express terms of the franchise granted to appellee, in section 7 thereof, reserved the contractual right to fix and regulate the water rates to be charged by appellee, yet a reference to said section, as set out in the petition, fails to bear out such assertion. This section contains nothing more than an obligatory promise upon the part of the water corporation to furnish water to the inhabitants of the city "at fair and reasonable rates," and in no sense gives the municipality the contractual right to fix the rates. Doubtless, the city, within reasonable limitations, could have secured to itself this right by contract; but, inasmuch as it did not do so, the legality of the ordinance by which it was attempted to fix the water rates must be sought for on other grounds. At the time the city council passed the ordinance in question, there was no express statutory provision authorizing cities and towns incorporated under the general...