Britton v. Green Bay & Ft. H. Water-Works Co.

• Decision Date: 12 January 1892
• Citation: 81 Wis. 48,51 N.W. 84
• Parties: BRITTON v. GREEN BAY & FT. H. WATER-WORKS CO.
• Court: Wisconsin Supreme Court

81 Wis. 48

51 N.W. 84

BRITTON

v.GREEN BAY & FT. H. WATER-WORKS CO.

Supreme Court of Wisconsin.

Jan. 12, 1892.

Appeal from circuit court, Brown county; SAMUEL D. HASTINGS, Jr., Judge.

Action by David W. Britton against the Green Bay & Fort Howard Water-Works Company. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.Greene & Vroman, for appellant, cited Hayes v. Railway Co., 111 U. S. 228, 4 Sup. Ct. Rep. 369;Village of St. Johnsbury v. Thompson, 59 Vt. 300, 9 Atl. Rep. 571;State v. Pierce, 35 Wis. 98, 99;McCall v. Chamberlain, 13 Wis. 637;Schmidt v. Railway Co., 23 Wis. 186;Ransom v. Railway Co., 62 Wis. 178, 22 N. W. Rep. 147;Willy v. Mulledy, 78 N. Y. 310;Weet v. Brockport, 16 N. Y. 161, 168, note; Robinson v. Chamberlain, 34 N. Y. 389;Sawyer v. Corse, 17 Grat. 230;Hover v. Barkhoof, 44 N. Y. 113;Bennett v. Whitney, 94 N. Y. 302;Raynsford v. Phelps, 43 Mich. 342, 5 N. W. Rep. 403;Robinson v. Rohr, 73 Wis. 436, 40 N. W. 668.

J. C. & A. C. Neville and Ellis & Merrill, ( F. C. Winkler, of counsel,) for respondent.

ORTON, J.

The demurrer to the complaint, on the ground that it did not state a cause of action, was sustained, and this appeal is from said order. The material facts stated in the complaint are substantially as follows: The water-works of the respondent company, in the city of Green Bay, were completed in 1887. Water-mains were laid throughout the city, and 160 double-nozzled hydrants thereon were located at different points, and one of them in the vicinity of the property of the plaintiff hereinafter mentioned. The mains and hydrants were connected with two direct pressure pumping engines, as the power to furnish water for fire purposes and of sufficient capacity, and that could be used singly or together, and supplied by four first-class boilers. The property of the plaintiff in such viciniity of the mains and hydrants consisted of certain lots, on which were mills, coopershops, sheds, and other structures, and certain personal property therein, such as staves, heading, and other materials and things, all of great value. In November, 1890, a fire broke out in one of said sheds, and gradually spread until all of the sheds and other property were burned or damaged to the value and amount of $18,884.88. The fire was discovered in its incipiency, and the fire department was promptly on the ground, with all the necessary means and appliances to put it out before such damage occurred, and would have done so if the defendant company had furnished water to the mains and hydrants for such purpose, according to its agreement with the city of Green Bay, as hereinafter stated. But on account of the pumping machinery, steam-boilers, and other appliances having become so defective, out of order, and insufficient, through the negligence of the defendant, or were so negligently used by the defendant, there was not sufficient pressure on the mains or water in the hydrants in the vicinity of said property for such purpose, and said property was therefore burned or damaged as aforesaid. It is charged, in effect, that the defendant neglected to furnish water, through and by its works, to the city of Green Bay, so that said city could and would have put out said fire before it had so damaged or destroyed the property of the plaintiff.

The provisions of the ordinance of the city, the acceptance of which constituted the contract between the defendant and the city for the construction of said water-works, material to the case, are as follows: The franchises granted to the company as the consideration of the agreement to do what the ordinance requires are: First, “to use the streets, alleys, public sidewalks, public grounds, streams, and bridges of the city for placing and repairing the mains, hydrants, water-pipes, and other structures of the water-works;” second, “to charge and collect rates for furnishing the inhabitants of said city with water for private use.” Besides the construction of the water-works as above, the company is required “to supply said city, and the inhabitants thereof, with water for public and private uses, for public and private consumption, and for putting out fires.”

First, the learned counsel of the appellant contend that by the language of the ordinance the water-works company entered into contract relations with the inhabitants of the city, as individuals, to supply them, or for their use and benefit, water for public use, and for public consumption, and for putting out fires. Such does not appear to be the meaning of this language. It is not that the company shall supply the city and the inhabitants thereof with water jointly, and for the same purposes and uses. The city and the inhabitants are by this general language joined together, but it is followed by distributive uses and purposes appropriate to each,--to the city, for public uses and consumption and for putting out fires; and to the inhabitants, for private use and consumption. It will hardly be claimed that the company is to supply the individual inhabitants with water to put out fires by this peculiar language. They can, if they choose, use the water for such purpose, or to put out their own fires in their own way, but that right is given by another clause of the contract. The company shall furnish the inhabitants with water for private use, and may charge and collect rates therefor. If both the city and the inhabitants are given the right to water for putting out fires generally, their rights would clash; and, besides, such a right is a public one, and in no sense private. Such public use of water would be supplied to the inhabitants generally as to the public, but the above language does not require the company to supply the inhabitants with water, even in this sense. The inhabitants are mentioned only in respect to their private use of water. This is in accordance with the gravamen of the complaint, that the defendant company neglected to furnish the city water to put out the fire that consumed the plaintiff's property, and that the fire department of said city would have extinguished and prevented the spread of the fire but for the negligence and carelessness of the defendant. It is too plain for argument that the plaintiff has no contractual relations with the defendant in respect to being supplied with water to be used in putting out this fire. One of the breaches is that the firehydrants were not kept supplied with water for fire service. The fire department of the city only could use the hydrants for such purpose.

It is not alleged in the complaint, any further than reciting the above language of the ordinance, that the defendant contracted with or for the plaintiff, or that it owed any duty to the plaintiff, or that the defendant had assumed any contract, legal or moral obligation, towards the plaintiff, to supply water to put out this fire or any other, and yet it is now claimed by the learned counsel of the appellant-- First, that the defendant is liable to the plaintiff for the breach of this contract; and, secondly, for neglect of duty. The matter of contract being out of the question, it remains only to consider whether the defendant is liable to the plaintiff for the neglect of any duty it owed him, under the facts stated in the complaint. Such duty, if it exists at all, must be merely inferential from the facts stated, and, as it is not defined or alleged in the complaint, the field of inquiry is very wide.

We will consider briefly the various grounds of the defendant's liability to the plaintiff, in view of the facts which the learned counsel of the appellant claim they have found in this wide field of inquiry.

First. It is said that this ordinance has the force of law, and that therefore what it requires the company to do is required by law. That would be so if the city had the power by ordinance...