Bothwell v. Consumers' Co., Ltd.

• Citation: 13 Idaho 568,92 P. 533
• Parties: FRED L. BOTHWELL, Appellant, v. CONSUMERS' COMPANY, LTD., Respondent
• Decision Date: 09 November 1907
• Court: Idaho Supreme Court

92 P. 533

13 Idaho 568

FRED L. BOTHWELL, Appellant, v. CONSUMERS' COMPANY, LTD., Respondent

Supreme Court of Idaho

November 9, 1907

WATER CORPORATIONS-DUTIES TO CONSUMERS-DUTY OF COMPANY TO PAY FOR ITS OWN LATERALS, PIPES AND CONNECTIONS.

1. Where the water company has fixed the rates for which it will supply consumers with water for domestic purposes, but no rate has been fixed in the manner prescribed by the statute and a consumer offers and tenders the company the monthly rate fixed by it and demands that he be supplied with water the company will not be allowed to defend upon the ground that no rate has ever been fixed in the manner prescribed by law, as the primary duty of causing the rate to be established in the manner prescribed by law rests upon the company.

2. All the mains and laterals of a water system within the franchise limit belong to the company owning the franchise, and it is the duty of the company to construct the same at its own expense and connect with the pipes of the property owner at the line of his property and the limit of its franchise.

3. Where a lot owner constructs a building on his property and places water-pipes and fixtures therein, and extends the same to the street adjoining, and thereupon tenders to the water company the monthly rent charged by it, it becomes the duty of the company to make the necessary tap and connections and furnish the property owner with water as demanded.

(Syllabus by the court.)

APPEAL from the District Court of First Judicial District, for the County of Kootenai. Hon. W. W. Woods, Judge.

Action by the plaintiff to compel the defendant water company to tap its main and connect with the water-pipes of plaintiff at the line of his property. Demurrer to the complaint was sustained, and judgment of dismissal was thereupon entered. Plaintiff appealed from the judgment. Reversed.

Reversed and remanded, with directions. Costs awarded to appellant.

Reed &amp Boughton, for Appellant.

There is no contention in this action on the part of the appellant regarding the reasonableness of the monthly water rates established by respondent. That rate appellant is ready and willing to pay, but contends that he should not be compelled to pay $ 8 or $ 10 for tapping the main, or, in other words, to pay for a part of respondent's water system. It was the duty of respondent to have the rates established in the manner provided by law, which it did not do.

Respondent's water mains, pipes, laterals, connections, fitting and all other facilities for conveying, distributing and carrying water under its franchise are owned and under the absolute control of the respondent. Hence the cost and expense of putting in these facilities must be borne by respondent.

The term "lateral" comprehends that part of respondent's system of waterworks from the tap in the mains to the connection of the service pipe of the consumer. (Jackson v. Mayor, 4 N. Dak. 478, 61 N.W. 1030.) Appellant cannot be compelled to pay for any part of respondent's system of waterworks. (Wilterding v. Green, 4 Idaho 773, 45 P. 134; Wheeler v. Irrigating Co., 10 Colo. 582, 3 Am. St. Rep. 603, 17 P. 487; Northern Colorado Irr. Co. v. Richards, 22 Colo. 450, 45 P. 423; San Diego Land & Town Co. v. City, 74 F. 79; Pocatello Water Co. v. Standley, 7 Idaho 155, 61 P. 418.)

There is no question about the demand that appellant pay $ 40 water rent in advance being unreasonable. (Wheeler v. Northern Colo. Irr. Co., 10 Colo. 582, 3 Am. St. Rep. 603, 17 P. 487; Rockland Water Co. v. Adams, 84 Me. 472, 30 Am. St. Rep. 368, 24 A. 840.)

Corporations furnishing water are public service corporations, and must furnish water to all persons on the line of their mains without discrimination in charges. (Haugen v. Albina Light & Water Co., 21 Or. 411, 28 P. 244, 14 L. R. A. 424; McCreary v. Beaudry, 67 Cal. 120, 7 P. 264; Olmstead v. Morris Aqueduct, 47 N.J.L. 311; Spring Valley Waterworks v. Schottler, 110 U.S. 347, 28 L.Ed. 173, 4 S.Ct. 48; Price v. Riverside Land etc. Co., 56 Cal. 431.)

Robert H. Elder, and M. A. Folsom, for Respondent.

The right to collect pay for water is a franchise and can be exercised only in the manner pointed out by the statutes. (Wilterding v. Green, 4 Idaho 733, 45 P. 134; Waterworks v. Bryant, 52 Cal. 132; San Francisco etc. Factory v. Brickwedel, 60 Cal. 166; Waterworks v. Schottler, 110 U.S. 347, 28 L.Ed. 173, 4 S.Ct. 48; San Francisco v. Waterworks, 53 Cal. 608; Jacobs v. Board of Supervisors, 100 Cal. 121, 34 P. 630.)

What the terms, rates, and conditions shall be the statute (Sec. 2711, Rev. Stats. of Idaho as amended by House Bill No. 168, Sess. Laws 1905, p. 192) authorizes the water commission to say. It is clear that the plaintiff has a plain, adequate and speedy remedy at law. (Wilterding v. Green, 4 Idaho 773, 45 P. 134; People v. Stevens, 62 Cal. 209.)

The constitution provides that the right to collect the rates thus established by the water commissioner is a franchise, and cannot be exercised except by authority of and in the manner prescribed by law. (Idaho Const., art. 15, sec. 2.)

Until the rates and terms have been established in accordance with the constitution and statutes, a contract for the payment of a rate fixed in a manner other than the manner payment of a rate fixed in a manner other than the manner provided by the statute is void, and cannot be enforced. (San Francisco etc. Factory v. Brickwedel, 60 Cal. 166; People v. Stephens, 62 Cal. 209; Wheeler v. Northern Col. Co., 10 Colo. 582, 3 Am. St. Rep. 603, 17 P. 487; Jack v. Village of Grangeville, 9 Idaho 291, 74 P. 969; Waterworks v. Bryant, 52 Cal. 133; Wilson v. Perrault, 6 Idaho 178, 54 P. 617; Sheward v. Citizens' Water Co., 90 Cal. 635, 27 P. 439; San Diego v. San Diego Water Co., 59 Cal. 517; Spring Valley Waterworks v. San Francisco, 61 Cal. 18; Boise City v. Water Co., 4 Idaho 351, 39 P. 562.)

AILSHIE, C. J. Sullivan and Stewart, JJ., concur.

OPINION

AILSHIE, C. J.

This action was commenced by the appellant filing his affidavit or petition in the district court praying for the issuance of a writ of mandate against the respondent, directing and requiring it to make a tap in its water main and connect the same with the water-pipe leading to appellant's premises. The petition alleges that the plaintiff is a citizen and resident of the village of Coeur d'Alene, and residing on lot 2 of block 4 in Russell's addition to that village, being situate on the west side of Second street therein; that he had constructed a dwelling-house thereon, and fitted the same with water-pipes, fittings and fixtures, and had extended a pipe of proper and suitable size from his residence to Second street, and a distance of six feet beyond his property line into the street, and that he thereupon tendered to the respondent the sum of $ 1.75, the amount charged by it as water rent for one month for a house of the size of that owned and occupied by appellant. He alleges that the respondent is a corporation organized and existing under the laws of this state for the purpose of furnishing and supplying water to the village of Coeur d'Alene and the inhabitants thereof, and that it is engaged in selling and delivering water to the inhabitants of that village, and that it is acting and operating under a franchise granted it for such purpose by the board of trustees of the municipality. He also alleges that the water company has a main running along Second street in front of his property, and that it has an abundant supply of water and more than is sold or contracted, and sufficient to supply appellant in addition to all the other inhabitants of the village. It is alleged that the company "refused to make said tap in its water main, and connect the same with plaintiff's water-pipe on said premises, or to furnish plaintiff water for domestic purposes at said premises unless plaintiff water pay to said defendant the sum Ten Dollars ($ 10.00) for a 3/4-inch tap; or deposit with said defendant the sum of Fifteen Dollars ($ 15.00) for said tap, which said sum of money, less all expenses of putting in said tap and the cost of the corporation cock, would be refunded to said plaintiff at any time said tap was no longer needed; or that plaintiff deposit with said defendant the sum of Forty Dollars ($ 40.00) to be applied on the water rent at said premises."

The company demurred to...