Bay City Plumbing & Heating Co. v. Lind

• Decision Date: 01 July 1926
• Docket Number: No. 18.,18.
• Court: Michigan Supreme Court
• Parties: BAY CITY PLUMBING & HEATING CO. v. LIND et al.

235 Mich. 455

209 N.W. 579

BAY CITY PLUMBING & HEATING CO.

v.LIND et al.

No. 18.

Supreme Court of Michigan.

July 1, 1926.

Error to Circuit Court, Bay County; X. H. Boomhower, Judge.

Action by the Bay City Plumbing & Heating Company against Peter Lind and another. Judgment for plaintiff, and defendants bring error. Reversed.

Argued before the Entire Bench.

Robt. H. Lane, of Bay City, for appellants.

Lewis J. Weadock, of Bay City, for appellee.

BIRD, C. J.

The city of Bay City was recently engaged in installing a new water system. It owned the necessary property on the shore of the bay. To reach that property it was obliged to traverse the township of Bangor with a water pipe. Plaintiffs were engaged in laying that water pipe for the city. They laid several hundred feet in the highway, which extended from the city to and through the township. It was laid about 12 feet east of the traveled way, and interfered in no way with travel. Defendants, after 5 o'clock one evening, hitched farm tractors to the pipe, and pulled it out. The defendants are the supervisors and highway commissioner of the township, and they justify their acts on the ground that Bay City had no franchise to place their pipe in the township of Bangor; that no permission had been granted to Bay City, and it had condemned no property rights for that purpose. The matter was submitted to a jury, and they returned a verdict for plaintiff of $295.

Defendants contend that under the proofs they should have had a directed verdict. They contend that Bay City was installing its water system under the authority of C. L. 1915, § 3401 et seq.; that this act gives Bay City the authority to purchase land rights, and to condemn the necessary property rights. The city used neither of these methods, and therefore, under article 8, § 28, of the Michigan Constitution, it was a trespasser when it attempted to use the property rights of the township of Bangor. The constitutional provision referred to is as follows:

‘No person, partnership, association or corporation operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any city, village or township for wires, poles, pipes, tracks or conduits, without the consent of the duly constituted authorities of such city, village or township; nor to transact a local business therein without first obtaining a franchise therefor from such city, villege or township. The right of all cities, villages and townships to the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships.'

Plaintiff, in answering this contention, points to the constitutional provision authorizing cities and villages to own and operate waterworks within or without its limits. That section, in part, reads:

‘Subject to the provisions of this Constitution, any city or village may acquire, own and operate, either within or without its corporate limits, public utilities for supplying water, light, heat, power and transportation to the municipality and the inhabitants thereof; and may also sell and deliver water, heat, power and light without its corporate limits to an amount not to exceed twenty-five per cent. of that furnished by it within the corporate limits. * * *’ Article 8, § 23.

The plaintiff also calls attention to the statutory provisions which authorize cities and villages to acquire...