Bartholomew v. City of Austin

• Decision Date: 01 February 1898
• Docket Number: 576.
• Citation: 85 F. 359
• Parties: BARTHOLOMEW v. CITY OF AUSTIN, TEX.
• Court: U.S. Court of Appeals — Fifth Circuit

85 F. 359

BARTHOLOMEW v. CITY OF AUSTIN, TEX.

No. 576.

United States Court of Appeals, Fifth Circuit.

February 1, 1898

This action was instituted to recover from the city of Austin the sum of $16,900.83 for water supplied and rental of hydrants on a contract entered into between the City Water Company and the city of Austin on the 13th day of April, 1882, which contract was attached to and made a part of the petition, and of which the following is a copy:

'City Water Company Contract with the City of Austin.

'An Ordinance.

'Contract between the City Water Company and the City of Austin.

'This contract, made and entered into this thirteenth day of April, A.D. 1882, by and between the City Water Company, a corporation of the city of Austin, in the county of Travis and state of Texas, party of the first part, and the city of Austin, a body corporate of the county of Travis in the state of Texas, party of the second part, witnesseth:

'Whereas, the city council of the city of Austin deem it necessary to provide for a more effective protection of the property of taxpayers of the said city from fire; and for the further purposes of extending such protection to a larger number of taxpayers, and also to secure to the citizens of the said city a supply of water suitable for domestic purposes, and for the further benefits of the city of Austin, hereinafter mentioned; and, in accordance with the seventh and twentieth paragraphs of section 1 of article six (6) of the charter of the city of Austin, together with the other powers contained in said article six (6):

'Therefore, be it ordained by the city council of the city of Austin:

'Section 1. That there is hereby given and granted to the City Water Company the right and privilege for the term of twenty years from the date of the

execution of this contract, of supplying the city of Austin and the citizens thereof with water by a system of waterworks constructed upon the method of supplying a city with water, either for domestic use or for the extinguishment of fire, that is to say, by pumping the water directly into the mains with contrivances by which the pressure on those mains may be increased or diminished, or preserved uniform.

'Sec. 2. The said company is hereby authorized to establish, construct, maintain and operate said works in said city of Austin; to receive, take and store, construct and distribute water throught the city; to construct and extend aqueducts, mains and pipes through all the streets, alleys, lanes and public grounds, across any stream or bridges in said city; to erect and maintain all engines, machinery and other appliances necessary for the proper conducting of said works, and for supplying said city and the inhabitants thereof with water for domestic, manufacturing, fire and other purposes. The said City Water Company shall have the right to take up all pavements or sidewalks on streets, alleys, lanes or public grounds, and make such excavation therein as may be necessary to lay, repair and maintain aqueducts and pipes below the surface of the ground for conveying and distributing said water as aforesaid; provided that said company shall, within a reasonable time, replace and repair all pavements and sidewalks and fill all such excavations and restore the streets in as good condition as they were in before.

'Sec. 3. That said company shall be liable for all damages occasioned by a failure to guard and protect persons and property from injury by reason of the removal of such pavements and sidewalks, or the making of such excavations as aforesaid. The rights and liabilities provided for in this contract shall continue for a period of twenty years, unless sooner extinguished by purchase as hereinafter provided.

'Sec. 4. The said waterworks shall be constructed with pumps of not less capacity than three million gallons in twenty-four hours, and also to produce the fire streams hereinafter mentioned, the pumps shall be what is known as the quadruplex compound condensing pumping engines of the Holly Company, and there shall be in addition an auxiliary, or reserve high pressure pump of the same capacity, making an aggregate easy working capacity of five million gallons per day.

'Sec. 5. The said City Water Company shall lay six miles of mains and pipes, more or less, as shown on the plat which makes a part of this contract, and is marked 'Exhibit A,' for the distribution of water in said city, in addition to the mains and pipes already in use. The mains and pipes used in this extension shall be of proper sizes, and the said City Water Company shall replace such of its mains now in use with such other mains and pipes as to secure, in connection with the extensions herein mentioned, an easy flow of water through the entire system of mains, and to comply with all the conditions of this contract: such mains shall be from four inches to sixteen inches in their inner diameter, and shall be of standard weight and strength to insure the fire streams hereinafter mentioned.

' Sec. 6. The said city of Austin shall, by a vote of the city council, have the right to take up any of the hydrants on the mains and pipes now in use and relocate them upon the extensions designated in section 5, and the said city of Austin shall also order twenty-five hydrants at the expense of the City Water Company, in addition to the number now in use, to be located upon said extensions, making in all one hundred hydrants upon the entire pipe distribution herein contemplated. The city of Austin hereby agrees to pay said City Water Company an annual rental of one hundred dollars for each of said one hundred hydrants, for the purposes contemplated in this contract, which said rental shall be paid semiannually on the first of July and January of each year in a warrant drawn on the city treasurer, that is to say, at the end of each half year or six months, during the full time specified in this contract, the first payment of each of these hydrants to become due and payable at the end of six months, after each of such hydrants is placed in position and ready for use; and, for the purpose of providing for the payment of all hydrants rental becoming due under the provisions of this contract, the city council shall annually make an appropriation sufficient to pay the same out of the first moneys not otherwise appropriated, arising from the general revenue of the city.

'Sec. 7. For all extensions of mains which the city may hereafter order, in addition to the extensions contemplated in this contract, the said company shall erect not less than ten (10) fire hydrants to the mile, for which the city shall pay a rental of fifty dollars a year for each hydrant so ordered and erected, payments to be made as hereinbefore mentioned.

'Sec. 8. None of the hydrants from which fire streams are to be taken, as hereinafter provided, shall be located upon pipes or mains of less than four inches in their inner diameter. The said City Water Company shall permit any owner or occupant of any building to erect standpipes and connect the same with the mains hereby authorized to be laid, or any main hereafter laid by order of the council of the said city of Austin, under the provisions of this contract, and they shall have the use of water through such standpipes and connections for the prevention and extinguishment of fires, free of charge, upon giving the said City Water Company a written agreement that they will not use the water from said pipes and connections for any other purposes whatever. The said city of Austin shall have the right to erect and connect twenty-five fire hydrants to the mains, at any time, under the provisions of this contract, at the expense of the said water company, and use the same for the prevention and extinguishment of fires, free of charge, provided always, that the said city of Austin shall first pay a rental on the first one hundred (100) hydrants contemplated in this contract. The city of Austin shall have the right to connect standpipes to the mains of all extensions ordered by the city, after first paying a rental for at least ten (10) hydrants for every mile of such extensions. The owner or occupant of any property may also connect standpipes or hydrants with the mains, upon the city paying the rental hereinbefore mentioned. As soon as the works are completed the said City Water Company shall cause the fire streams hereafter specified to be produced in the presence of the city council, or such committee as the council may appoint, which shall take place within five (5) days after the completion of said works. At the first meeting of the council, after the full and faithful performance of the tests hereinafter specified, the city council shall accept the works and the date of such acceptance shall be the time at which the city shall commence to pay the rental for the hydrants at that time located.

'Sec. 9. Said waterworks when constructed shall have the capacity of discharging six (6) fire streams at the same time, through one (1) inch nozzles, from any six (6) hydrants located upon pipes not less in size than four inches in their inner diameter, through fifty feet of two and one-half inch hose, to a height of one hundred (100) feet, or to maintain its equivalent in pressure at the nozzle of said hydrants, so long as it may be necessary for the extinguishment of any fires. There shall be always sufficient pressure for all domestic demands.

'Sec. 10. The City Water Company furthermore agrees to put new hydrants in the place of old ones so as to make the nozzle connections for hose uniform throughout the whole one hundred and twenty-five hydrants located and to be located on the mains and pipes, as shown on the plat accompanying this proposition.

'Sec 11. The...