Bush v. Artesian Hot & Cold Water Co.

• Decision Date: 31 December 1895
• Citation: 43 P. 69,4 Idaho 618
• Parties: BUSH v. ARTESIAN HOT AND COLD WATER CO
• Court: Idaho Supreme Court

43 P. 69

4 Idaho 618

BUSH v. ARTESIAN HOT AND COLD WATER CO

Supreme Court of Idaho

December 31, 1895

CONTRACT BETWEEN CITY AND WATER COMPANY-WATER COMPANY NOT LIABLE TO INDIVIDUAL CITIZEN UNDER THE CONTRACT.-Under a contract between a city and a water company by which the latter agrees to supply the city with water sufficient for fire purposes an individual citizen whose property has been destroyed by fire, through the alleged neglect of the water company in complying with the terms of such contract has no right of action against the company.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Order and judgment affirmed, with costs.

Hawley & Puckett, for Appellant.

This action is brought by plaintiff to recover from defendant the sum of $ 12,100, claimed to be due on account of the burning of the Central Hotel in Boise City, in August, 1893. The defendant at that time had a contract with Boise City under the terms of which it was bound to furnish a sufficient supply of water, under sufficient pressure, for extinguishing fires in said Boise City. On August 1, 1893, a fire started in the Central Hotel in said Boise City, which, under ordinary circumstances, could easily have been extinguished but, by reason of the defendant having rented out its water for irrigating and other purposes, there was not a sufficient supply of water in the mains of the company to use for fire purposes, and in consequence thereof, plaintiff's said building burned, entailing a loss upon him as before stated. The only point involved in this appeal is whether or not a citizen of a municipality can sue for and recover damages sustained by reason of a failure of a person or corporation to comply with the terms of a contract made with the municipal authorities, agreeing to furnish water to the city and its inhabitants for fire purposes. We contend the contract made with a municipality for such purpose is made for the benefit of all its inhabitants. We cannot understand what binding force such a contract has, or what responsibility attaches to the person or corporation contracting to furnish the water supply, unless the resident injured by the failure to comply with the terms of the contract has the right to sue for damages sustained. On this point we refer the court to the well-considered case of Paducah Lumber Co. v. Paducah Water Co., 89 Ky. 340 25 Am. St. Rep. 536, 12 S.W. 554, 13 S.W. 249.

R. Z Johnson and R. H. Johnson, for Respondent.

"There is no privity of contract between a citizen or resident and the water company as will authorize him to maintain an action against it for injury or destruction of his property by fire, caused by a failure of the water company to fulfill its contract." (Mott v. Cherryvale Water Co., 48 Kan. 12, 30 Am. St. Rep. 267, 28 P. 989; Howsmon v. Trenton Water Co., 119 Mo. 304, 41 Am. St. Rep. 654, 24 S.W. 784; Anderson v. Fitzgerald, 21 F. 294; Davis v. Clinton Water Works Co., 54 Iowa 59, 37 Am. Rep. 185, 6 N.W. 126; Wainwright v. Queens County Water Co., 78 Hun, 146, 28 N.Y.S. 989; Aetna Nat. Bank v. Fourth Nat. Bank, 46 N.Y. 82, 7 Am. Rep. 314; Garnsey v. Rogers, 47 N.Y. 233, 7 Am. Rep. 440; Vrooman v. Turner, 69 N.Y. 280, 25 Am. Rep. 195; Turk v. Ridge, 41 N.Y. 207; Merrill v. Green, 55 N.Y. 270; Simson v. Brown, 68 N.Y. 355; Becker v. Keokuk Waterworks, 79 Iowa 419, 18 Am. St. Rep. 377, and note, 44 N.W. 694; 29 Am. & Eng. Corp. Cas. 397, and note, 381; Clark v. Des Moines, 19 Iowa 212, 87 Am. Dec. 423; McPherson v. Foster, 43 Iowa 57, 22 Am. Rep. 215.) No power is given to the city of Boise to make a contract of indemnity directly and expressly for the benefit of an individual taxpayer that would entitle him to sue for a breach of it; consequently, the contract in this case cannot receive such a construction and cannot have added to it by implication a condition which was not contemplated by the parties to the contract at the time it was made, and which would have been beyond the power of the city to have entered into. (Mott v. Cherryvale etc. Co., 48 Kan. 12, 30 Am. St. Rep. 267, 28 P. 989.) The furnishing of water by a city to afford protection from fire is solely a governmental duty assumed exclusively for the benefit of the public. The city is not legally bound to afford such protection to its citizens, and is not hampered by the rule of responsibility to individuals for the careless performance thereof, by its officers or agents. (Mayor of New York v. Workman, 67 F. 348.) "A contract between a city and a water company, whereby the latter agrees to furnish water for the extinguishment of fires, does not give a private person, whose property is burned up through failure to furnish water, any right of action therefor against the company, since he is no party to the contract." (House v. Houston Waterworks Co. (Tex.), 22 S.W. 277; Fitch v. Seymour Water Co., 139 Ind. 214, 47 Am. St. Rep. 258, 37 N. S. 982; Ferris v. Carson Water Co., 16 Nev. 44-47, 40 Am. Rep. 485.)

HUSTON, J. Morgan, C. J., and Sullivan, J., concur.

OPINION

HUSTON, J.

On the first day of August, 1893, the defendant corporation was under contract with Boise City, by the terms whereof, as the same is set forth in the complaint herein, said defendant agreed for a certain stipulated consideration to "maintain and keep in order forty hydrants, so placed in position as aforesaid, and such other hydrants as should be required by said Boise City, and to supply water at all points where such hydrants were located, sufficient for fire purposes in the vicinity thereof," etc.; that on said first day of August, 1893, the plaintiff was the owner and in possession of certain real property and buildings therein situated in said Boise City; that said buildings were destroyed by fire on said first day of August, whereby plaintiff suffered damage in the sum of $ 12,100; that such loss was the result of, and in consequence of the failure of defendant to keep a sufficient supply of water in the hydrants and water-pipes adjacent to said property. To the complaint, defendant filed the following demurrer: "Now comes the said defendant, by Messrs. Johnson & Johnson, its attorneys herein, and demurs to plaintiff's complaint in the above-entitled action filed, on the ground that it appears on the face thereof: (1) That said complaint does not state facts sufficient to constitute a cause of action. (2) That said complaint is ambiguous, unintelligible and uncertain: 1. In that, while it attempts to hold said defendant liable for the destruction of plaintiff's property through the alleged failure of defendant to furnish sufficient water supply, it does not allege or set forth any contract between defendant and said plaintiff to furnish such water supply, or any water supply whatever, for fire purposes; nor does it allege that plaintiff and defendant ever in any manner contracted for such a water supply, or that any consideration was ever paid, or promised to be paid, by plaintiff to defendant therefor; 2. In that it does not allege that plaintiff was a party to the said contract between said defendant and Boise City for supplying water for extinguishing fires, nor show any privity of contract between said plaintiff and said Boise City in relation to said contract on which to base...