Bismarck Water Supply Company v. City of Bismarck

• Citation: 137 N.W. 34,23 N.D. 352
• Decision Date: 14 June 1912
• Court: North Dakota Supreme Court

137 N.W. 34

23 N.D. 352

BISMARCK WATER SUPPLY COMPANY v. CITY OF BISMARCK

Supreme Court of North Dakota

June 14, 1912

Appeal by defendant from a judgment of the District Court for Burleigh County, S. L. Nuchols, Special Judge, in plaintiff's favor, in an action brought to recover expenses incurred in lowering its water main.

Affirmed.

F. H Register, for appellant.

Ordinance 188 by imposing an additional burden and obligation infringed upon and impaired defendant's vested rights arising out of ordinance 83, and, to the extent of such impairment, is void. 15 Am. & Eng. Enc. Law, 2d ed. p. 1032; Louisiana ex rel. Folsom v. New Orleans, 109 U.S. 285, 27 L.Ed 936, 3 S.Ct. 211; Freeland v. Williams, 131 U.S 405, 33 L.Ed. 193, 9 S.Ct. 763; Hamilton Gaslight & Coke Co. v. Hamilton, 146 U.S. 258, 36 L.Ed. 963, 13 S.Ct 90; 15 Am. & Eng. Enc. Law, pp. 1046, 1047; Sturgis v. Custer, 114 U.S. 511, 29 L.Ed. 240, 5 S.Ct. 1014; State ex rel. American Sav. Union v. Whittlesey, 17 Wash. 447, 50 P. 119; Sutherland v. De Leon, 1 Tex. 250, 46 Am. Dec. 100; Hamilton County v. Rosche Bros. 50 Ohio St. 103, 19 L.R.A. 584, 40 Am. St. Rep. 653, 33 N.E. 408; Evans v. Denver, 26 Colo. 193, 57 P. 696; Northwestern Teleph. Exch. Co. v. Anderson, 12 N.D. 585, 65 L.R.A. 771, 102 Am. St. Rep. 580, 98 N.E. 706, 1 Ann. Cas. 110; Poole v. Fleeger, 11 Pet. 185, 9 L.Ed. 680.

The city is liable only when an established grade has been changed, and not for the establishment of a grade different from the natural grade. Keehn v. McGillicuddy, 15 Ind.App. 580, 44 N.E. 554; Jeffersonville v. Myers, 2 Ind.App. 532, 28 N.E. 999; and Wabash v. Alber, 88 Ind. 428.

For the original establishment of a grade line, and the reduction of the natural surface of the street for street purposes to such line, there is no legal right or natural equity in the dedicator, or his assignee, to compensation. 2 Dill. Mun. Corp. 4th ed. § 995; Columbus Gaslight & Coke Co. v. Columbus, 50 Ohio St. 65, 19 L.R.A. 510, 40 Am. St. Rep. 648, 33 N.E. 292; Dexter v. Broat, 16 Barb. 337; 1 Lewis, Em. Dom. 2d ed. p. 300, § 121c, note 74; National Waterworks Co. of New York City v. City of Kansas, 28 F. 921 (Mo. Case); Quincy v. Bull, 106 Ill. 337; Roanoke Gas Co. v. Roanoke, 88 Va. 810, 14 S.E. 665.

The indebtedness incurred by the city was in excess of the constitutional debt limit. Niles Waterworks v. Niles, 59 Mich. 311, 26 N.W. 525; State, Humphreys, Prosecutor, v. Bayonne, 55 N.J.L. 241, 26 A. 81; Salem Water Co. v. Salem, 5 Ore. 29.

Newton, Dullam, & Young, for respondent.

Contracts similar in nature to the one in question have been upheld by the following decisions: Gadsden v. Mitchell, 145 Ala. 137, 6 L.R.A.(N.S.) 784, 117 Am. St. Rep. 20, 40 So. 557; State ex rel. Norfolk v. Babcock, 22 Neb. 614, 35 N.W. 941; Maine Water Co. v. Waterville, 93 Me. 586, 49 L.R.A. 294, 45 A. 830; Argentine v. Atchison, T. & S. F. R. Co. 55 Kan. 730, 30 L.R.A. 255, 41 P. 946; Brooke v. Philadelphia, 162 Pa. 123, 24 L.R.A. 781, 29 A. 387; McQuillin, Mun. Ord. §§ 63 et seq.

In case the city in grading its streets should in any way cause detriment, direct or consequential, to private property without first making just compensation therefor, it would be acting unlawfully, and the parties so injured would have an action against the city for its damages so suffered. Searle v. Lead, 10 S.D. 312, 39 L.R.A. 345, 73 N.W. 101; Whittaker v. Deadwood, 12 S.D. 608, 82 N.W. 202; McElroy v. Kansas City, 21 F. 257; Brown v. Seattle, 5 Wash. 35, 18 L.R.A. 161, 31 P. 313, 32 P. 214; Montgomery v. Lemle, 121 Ala. 609, 25 So. 919. State ex rel. Smith v. Superior Ct. 26 Wash. 278, 66 P. 385; Vanderburgh v. Minneapolis, 98 Minn. 329, 6 L.R.A.(N.S.) 741, 108 N.W. 480; Lewis v. Seattle, 28 Wash. 639, 69 P. 393; Snyder v. Chicago, S. F. & C. R. Co. 112 Mo. 527, 20 S.W. 885; Stillwater Water Co. v. Stillwater, 52 N.W. 893.

A contract by which a city agrees to pay an annual rental during a term of years for a water supply to be furnished by a company does not create an indebtedness for the aggregate amount of such rental, so as to render it invalid as against a statutory or constitutional limitation. Cunningham v. Cleveland, 39 C. C. A. 211, 98 F. 657; Smith v. Dedham, 144 Mass. 177, 10 N.E. 782; Walla Walla v. Walla Walla Water Co. 172 U.S. 1, 43 L.Ed. 341, 19 S.Ct. 77; Centerville v. Fidelity Trust & G. Co. 55 C. C. A. 348, 118 F. 332; Lamar Water & Electric Light Co. v. Lamar, 128 Mo. 188, 32 L.R.A. 157, 26 S.W. 1025, 31 S.W. 756; Saleno v. Neosho, 127 Mo. 627, 27 L.R.A. 769, 48 Am. St. Rep. 653, 30 S.W. 190; Ludington Water-Supply Co. v. Ludington, 119 Mich. 480, 78 N.W. 558; Higgins v. San Diego, 118 Cal. 524, 45 P. 824, 50 P. 670; Fidelity Trust & G. Co. v. Fowler Water Co. 113 F. 560; Creston Water Works Co. v. Creston, 101 Iowa 687, 70 N.W. 739; Stedman v. Berlin, 97 Wis. 505, 73 N.W. 57; Cain v. Wyoming, 104 Ill.App. 538; Utica Waterworks Co. v. Utica, 31 Hun, 427; Territory ex rel. Woods v. Oklahoma, 2 Okla. 158, 37 P. 1094; State v. McCauley, 15 Cal. 429; McBean v. Fresno, 112 Cal. 159, 31 L.R.A. 794, 53 Am. St. Rep. 191, 44 P. 358.

OPINION

FISK, J.

Plaintiff was awarded judgment on the pleadings in the court below, and the defendant has appealed therefrom. The action is for the recovery of moneys necessarily expended by plaintiff in lowering its water main in Second street, between avenues A and B in the city of Bismarck, necessitated by reason of a change of grade of such street by defendant city.

In substance the complaint alleges and the answer admits the following facts:

1. That on May 26, 1886, the city of Bismarck duly passed an ordinance, No. 83, granting to the Bismarck Water Company, its successors, and assigns a license to lay and maintain water mains and pipes in the streets of such city for the period of twenty years, for the purpose of distributing water throughout the city, and to sell the same to all persons therein desiring to purchase the same, and that on September 15, 1886, a supplemental ordinance was passed by such city extending the time granted by the prior ordinance in which such water company might lay its mains and pipes in the streets until December 1, 1887.

2. That pursuant to such ordinances said water company constructed and established a water system and waterworks and plant in such city, and maintained and operated the same until about the year 1898, at which time it sold and assigned its said franchise, together with its water system, waterworks, plant, mains, pipes, and appliances to the plaintiff corporation.

3. On May 11, 1905, the defendant city duly passed ordinance No. 188, granting to plaintiff, its successors, and assigns, a license and franchise to lay and maintain water mains and pipes under any and all of the avenues, streets, alleys, public grounds, and thoroughfares of said city, for the purpose of distributing water throughout the city to its patrons for the period of twenty years from May 26, 1906, being the date of the expiration of the prior license and franchise granted under the preceding ordinances, and which latter ordinance expressly conferred upon plaintiff corporation the right to maintain the system theretofore constructed by the Bismarck Water Company, and then owned by plaintiff company.

4. The franchise and privileges thus granted to plaintiff by ordinance 188 was conditioned upon plaintiff entering into a contract with the city within thirty days from the date of the passage of such ordinance, promising and agreeing to and with such city that during the term from May 26, 1906, to May 26, 1926, plaintiff should not charge the city or its inhabitants more than certain rates therein specified, and that during such terms said company will furnish a full and complete supply of water for the use of said city and its inhabitants desiring to purchase water. And by § 6 of such ordinance it was provided as follows: "And in the event of a change of grade on any street or highway where the party of the second part shall have theretofore laid pipes or mains, the party of the first part shall reimburse the party of the second part in full for any expense that said party of the second part may be put to on account of such change of grade, either by way of lowering its pipes or mains to avoid the action of frost, or raising its pipes or mains or otherwise."

5. That on May 12, 1905, the city, as party of the first part, and the plaintiff, as party of the second part, entered into a contract in writing as required by such ordinance, and, among other things, such contract contained the following stipulation: "Ninth. That said city of Bismarck agrees that in case a change of grade in the streets and avenues in said city renders it necessary to raise and lower the water mains and pipes herein specified, that it, the said city, will pay the cost of relaying said water mains and pipes." And in P 10 of such contract it is further stipulated as follows: "And in the event of a change of grade on any street or highway where the party of the second part shall have theretofore laid pipes or mains, the party of the first part shall reimburse the party of the second part in full for any expense that said party of the second part may be put to on account of such change of grade, either by way of lowering its pipes or mains or otherwise;" which contract was approved and confirmed by the city council of said city on May 12, 1905.

6. That pursuant to the license, privilege, and franchise granted to it by ordinance 188 aforesaid plaintiff, in the year 1905, laid a water main in, along, and under Second street, in said city, between Avenues A and B, at about the depth of 8 feet below the surface and grade of said street, for the purpose of supplying water to the...