Becker v. Keokuk Water-Works

• Decision Date: 07 February 1889
• Citation: Becker v. Keokuk Water-Works, 79 Iowa 419, 44 N.W. 694 (Iowa 1889)
• Parties: BECKER v. KEOKUK WATER-WORKS.
• Court: Iowa Supreme Court

79 Iowa 419

44 N.W. 694

BECKER

v.KEOKUK WATER-WORKS.

Supreme Court of Iowa.

Feb. 7, 1889.

Appeal from superior court of Keokuk; HENRY BANK, Jr., Judge.

Action to recover damages for loss of property by fire.A demurrer to the petition was sustained; and, plaintiff refusing to further plead, judgment was rendered in favor of defendant for costs.Plaintiff appeals.James H. Anderson, for appellant.

James C. Davis, for appellee.

ROBINSON, J.

In the year 1877, the city of Keokuk, by means of an ordinance, entered into an agreement with defendant for a supply of water.The ordinance specified the capacity of the water-works which should be operated by defendant, and provided that it should at all times, day and night, be prepared to perform certain duties imposed by the ordinance, and to furnish the quantity of water specified.It provided that the city should pay fixed amounts for the use of a specified number of hydrants to be furnished by defendant for the purpose of extinguishing fires, and for other use, and that the amounts to be so paid should be raised by means of a special tax to be levied upon the taxable property within the limits of the city which would receive benefit and protection from the water-works.Section 18 of the ordinance is as follows: “That in laying down the pipes and conduits necessary to supply the city with water it is hereby expressly provided that no authority is conferred by the council to interfere with the rights and privileges heretofore granted to the Keokuk Gas-Light & Coke Company, and to railroads and other public corporations holding under the city; and it is expressly provided that said water-works, in laying its mains and pipes, and in enjoying the privileges herein granted, shall not in any manner disturb or displace any of the permanent monuments of the said city at street crossings, and in other places.This grant to the water-works company being conferred with the expressed conditions that said company shall be liable for all injury to persons or property caused by the negligence, mismanagement, or fault of itself or its employes, while engaged in the construction or operation of said works; and, should the city be sued therefor, they shall be notified of such suit, and thereupon it shall be the duty of said company to defend or settle the same, and, should judgment go against the city, in such case they shall recover the amount, with costs, from the company, and the record of the judgment against the city shall be conclusive evidence in the cause to enable the city to recover in any suit therein against the company.”The plaintiff was a property owner and tax-payer of the city of Keokuk at the time of the fire in controversy, and had paid special taxes levied upon his property pursuant to the terms of the ordinance, which were used, as therein provided, for the payment of defendant.While the contract with defendant was in force, property belonging to plaintiff situate within the limits of the city to be benefited and protected by the water-works was destroyed by fire.The fire department of the city was...