Birmingham Waterworks Co. v. Hernandez

• Decision Date: 13 January 1916
• Docket Number: 6 Div. 194
• Citation: 196 Ala. 438,71 So. 443
• Parties: BIRMINGHAM WATERWORKS CO. v. HERNANDEZ.
• Court: Alabama Supreme Court

71 So. 443

196 Ala. 438

BIRMINGHAM WATERWORKS CO. v. HERNANDEZ.

6 Div. 194

Supreme Court of Alabama

January 13, 1916

Rehearing Denied March 23, 1916

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Mandamus by Robert M. Hernandez against the Birmingham Waterworks Company to compel it to install a service pipe between its main and the property line of the relator. From a decree granting the writ, respondent appeals. Reversed and remanded.

The petition alleges that relator is a resident of the city of Birmingham, and is engaged in business under the name of the Hernandez Machinery Company, conducting a machine shop at 311 South Twelfth street in the city of Birmingham, which said premises abuts on a portion of the public streets, in said city of Birmingham; that the respondent is a public service corporation, acting under a charter granted it by the Legislature of Alabama, a copy of which is set out and attached as an exhibit; and that in June, 1888, it entered into a contract with the city of Birmingham to supply the inhabitants thereof with water, and a copy of this contract is set out and made an exhibit; that relator has applied to respondent for a supply of water in his business located as above set out, and has offered, and still offers, to pay respondent the usual water rates, and to comply with all the reasonable rules and regulations, except as to laying or installing of service pipes, from defendant's water mains or pipes in the streets, abutting said property, to the property line of said premises; but that respondent refused and has refused, to provide said service pipe between said line.

Percy Benners & Burr, of Birmingham, for appellant.

Romaine Boyd and M.M. Ullman, both of Birmingham, for appellee.

SAYRE J.

The question in this case arises out of an application by Hernandez for a writ of mandamus to compel the Birmingham Waterworks Company to lay at its expense a lateral or service pipe line from its main to the premises of the petitioner who desires to be supplied with water.

Respondent is exercising charter powers under and by virtue of the special act of incorporation approved February 13, 1885 (Acts 1884-85, p. 415 et seq.). This charter authorized respondent "to send and distribute water throughout the said city and places adjacent thereto," and "to lay pipes for conducting its water, and to make excavations through any of the streets, alleys or public grounds of the said city of Birmingham by and with the consent of the corporate authorities of said city." This charter provided that the company should have "the right to make contracts with individuals and corporations for the water to be supplied by it, and to charge for and collect such water rates and compensation therefor as may be contracted to be paid by them." Respondent is also exercising its charter powers in the city of Birmingham under an ordinance-contract with the municipal authorities into which the parties entered on June 2, 1888. This contract provided for certain maximum flat and meter rates at which water was to be furnished by respondents to domestic consumers and contained the following stipulations, which, it is supposed, must exert some influence in the proper decision of the controversy between the parties to this cause:

"The Birmingham Waterworks Company is authorized to lay down, maintain water mains, pipes, aqueducts and other fixtures to, in and through any of the streets, avenues, alleys and public grounds in said city, for the use of said city and its inhabitants as herein provided."

"The whole of said pipe system shall be such as to cover, supply, and keep supplied all portions of streets of the city which it may be necessary to supply, and be furnished with all the necessary and usual stop gates, special castings, air valves, blow-offs, etc."

"That all hydrants provided for under this contract shall be put in by, and at the expense of said Birmingham Waterworks Company, but shall thereafter become the property of said city, and shall be kept in repair and when worn out shall be replaced with new hydrants by and at the expense of said city."

To these things respondent's answer added averments that since it had been engaged in supplying water to the city of Birmingham, uniformly, both before and after the contract of June 2, 1888, consumers had paid the cost of laying and installing the service pipe lines between their premises and its main; that before said contract it had adopted a rule or regulation to that effect which was proper, reasonable, and such an one as had been generally maintained in cities throughout the United States, both in cases where the water supply was maintained by municipalities and as well where it was privately owned. The answer also set forth ordinances of the city of Birmingham providing that any one may make excavations in the streets for the purpose of laying service pipes on obtaining the city's permit, which is granted on the payment of a fee of one dollar and the giving of security that the street will be relaid in as good condition as it was before excavation.

The question then is, on the facts disclosed by the petition and answer, whether, on relator's application to be supplied with water, it was the duty of the respondent to lay the service pipe connecting its main with relator's premises at its own expense, or whether it might charge the cost of the work to relator.

In State v. Birmingham Waterworks Co., 185 Ala. 388, 64 So. 23, this court said:

"In this state it is not yet settled, and, however we might be disposed to view it, we do not regard it as a willful and culpable breach of duty by respondent to now decline to furnish such pipes at its own expense; though it is proper to say that the great weight of authority in other states seems to recognize and impose the duty in question."

At this time the question is presented for a definite answer, and we have made such shift as we could to investigate anew the original authorities and the reason of the matter.

It must be now admitted that the weight of authority, if numbers may count for weight, rests with relator's side of the controversy. Some of the cases constituting this weight of authority did not really involve the precise question here presented, and some of them appear to have been influenced to some extent by general statutory provisions; but it is safe to say that the rule for which relator contends has been substantially adopted as a rule of decision in Arkansas, California, Idaho, New Mexico, Oklahoma, and Washington, as the following cases will show: Pine Bluff Corporation v. Toney, 96 Ark. 345, 131 S.W. 680, Ann.Cas. 1912B, 544; Title Guarantee & Trust Co. v. R.R. Commission, 168 Cal. 295, 142 P. 878; Hatch v. Consumers Co., 17 Idaho, 204, 104 P. 670, 40 L.R.A. (N.S.) 263; State v. Albuquerque Water Supply Co., 19 N.M. 36, 140 P. 1059, L.R.A. 1915A, 246; Bartlesville Water Co. v. Bartlesville (Okl.) 150 P. 118; Cleveland v. Malden Water Co., 69 Wash. 541, 125 P. 769. In Texas, the Court of Civil Appeals for the Fourth Division holds to the same doctrine.

It is not without profit to note of the foregoing line of cases that it had its origin in some language, used arguendo, in Pocatello Water Co. v. Standley (1900) 7 Idaho, 155, 61 P. 518, where the question was between the water company and a plumber, not the prospective consumer, and related to the reasonableness of the company's rule by which it reserved the right to make all taps of its mains and pipes. Considering the obligations of a water supply company and construing the statute of that state, the court said:

"Under the said franchise the respondent *** is obliged to lay its mains and pipes in said streets and alleys, and deliver water to the consumers at its franchise limits, and to the line of the premises of the consumer, if such premises border on said franchise limits."

That case was cited to sustain the rule in Hatch v. Consumers Co., supra. This last case (Hatch Case) went to the Supreme Court of the United States (224 U.S. 148, 32 Sup.Ct. 465, 56 L.Ed. 703), and the decision of that court is cited in the brief for relator and was cited by the Supreme Court of Oklahoma as sustaining its ruling in Bartlesville Water Co. v. Bartlesville, supra. But the only effect of the ruling in the Supreme Court of the United States was that the judgment of the state court requiring the water company to make the service connection at its own expense impaired no constitutional right of the company which had accepted its charter in 1903, in contemplation of the duty of water companies as clearly settled by both the statute law and decisions at that time. To make the matter clear, we quote the language of the court:

"The charter of the company was construed by the court

below in connection with the statutes in force at the time of the grant of the franchise in the light of the construction given to those statutes in decisions made prior to such grant. We excerpt in the margin *** a passage from the opinion in one of those cases (Pocatello Case). *** That the construction thus placed upon the charter by the court below, in the light of the state of law at the time of its adoption, did not amount to an impairment of the obligations of the charter by subsequent legislation, is, we think, too clear for anything but statement."

The idea which seems to underlie all the cases holding with relator, except as they are affected by statute or ordinance may be fairly stated as follows: Since the franchise to furnish water is affected with a public use, requiring all consumers to be served on equal terms, and since water companies have the right to excavate the streets, while private...