Cardiff Light & Water Co. v. Taylor

• Decision Date: 02 July 1923
• Docket Number: 10388.
• Citation: 216 P. 711,73 Colo. 566
• Court: Colorado Supreme Court
• Parties: CARDIFF LIGHT & WATER CO. et al. v. TAYLOR.

216 P. 711

73 Colo. 566

CARDIFF LIGHT & WATER CO. et al. v. TAYLOR.

No. 10388.

Supreme Court of Colorado

July 2, 1923

Department 3.

Error to District Court, Garfield County; Clarence J. Morley Judge.

Action by C. W. Taylor against the Cardiff Light & Water Company and another. Judgment for plaintiff, and defendants bring error.

Affirmed.

Hughes & Dorsey and Walter M. Campbell, both of Denver, and A. L. Beardsley and C. W. Darrow, both of Glenwood Springs, for plaintiffs in error.

J. W Bell and C. W. Taylor, both of Glenwood Springs, for defendant in error.

CAMPBELL J.

The plaintiff, Taylor, recovered a joint judgment against the defendants, the city of Glenwood Springs and the Cardiff Light & Water Company, for $1,864 as damages for injury to his dwelling house caused by water that escaped from a water main, laid in one of the streets of the city, and thence seeped to his premises. The defendants are here with this writ of error. Numerous errors and objections are assigned and argued. None of them have merit. They are not separately considered, but the opinion sufficiently discloses what they are.

In the forepart of 1907 the town, now city, of Glenwood Springs, by ordinance, gave to C. W. Darrow, his associates and assigns the right to lay in certain of its streets, and forever to maintain therein, a six-inch pipe line or water main, and to connect it, at the north end, with the water system of the Glenwood Light & Water Company, a corporation which was then furnishing water to the city. The purpose of the grantees, which was executed, was to connect the pipe line at its south end with, and make the same a part of, a pipe line which it proposed to build to the town of Cardiff for supplying water to the town and to people living in that vicinity. The rights granted under this franchise ordinance were, by the grantees therein, assigned to the defendant Cardiff Water Company. Upon its assignment the Cardiff Company entered into a contract with the Glenwood Water Company, whereby the latter was to furnish to the Cardiff Company, at the point of connection of their respective pipe lines, water for the use of the Cardiff Company's customers for a designated consideration. The contract further provided that the Glenwood Water Company was to have charge of the water plant and system of the Cardiff Company when installed, extending from the point of its connection with the line of the Glenwood Company to the town of Cardiff, and to keep the same in good condition and repair, for which purpose the Cardiff Company was to furnish the necessary pipes and materials. There was also a provision that any claim or liability arising from defective pipes or materials, or from the operation or maintenance of the system of the Cardiff Company by the Glenwood Company, and all expenses incurred in connection therewith, were assumed by the Cardiff Company. Thereafter, and until July, 1914, as provided in the contract, the business in question was carried on, when the city of Glenwood Springs then purchased the waterworks system owned and operated by the Glenwood Water Company. In connection with the sale, and as a part of the terms thereof, the Glenwood Water Company assigned to the city of Glenwood Springs, which the latter accepted, all its rights and interests in and to its agreement with the Cardiff Company. Since July, 1914, the city, through its municipal water system, has furnished water and carried out the provisions of the contract with the Cardiff Company, and has recognized its obligations thereunder. During the month of April, 1916, about two years after the city acquired ownership of this water system, the plaintiff first noticed that the street and adjacent sidewalk, and the ground inside of his lot line, began to sink, and during the following summer months this wood pipe line, which had been laid in the street in front of his premises, was in bad condition and almost continuously leaked and discharged water therefrom, which caused the injury to his property for which this action was brought. The city was notified by plaintiff from time to time of these conditions and was requested to put the line in good condition, but failed to do so. The Cardiff Company, if it did not have actual notice from the plaintiff, was, or should have been, aware of these conditions.

Both defendants contend that the evidence was not sufficient to sustain the finding of the court that the injury to plaintiff's premises was caused by leakage and seepage from the pipe line. Its finding was based upon competent legal evidence, and cannot be set aside.

Each defendant, though not conceding separate liability, seeks to cast the blame on the other, if plaintiff has any grievance. The main contention, however, is that the wrong complained of is not a joint wrong, and, it that is the case, the cause of action pleaded was not proved. They invoke the doctrine laid down by this court in Livesay v. First Nat Bank, 36 Colo. 526, 86 P. 102, 6 L.R.A. (N. S.) 598, 118 Am.St.Rep. 120; Millard v. Miller, 39 Colo. 103, 88 P. 845; Mead v. Ph. Zang Brew. Co., 43 Colo. 1, 95 P. 284; Stratton's Indepen., Ltd., v Sterrett, 51 Colo. 17, 117 P. 351. The doctrine will be found concisely stated in Pomeroy's Remedies and Remedial Rights, §§ 281 to 308, and in 15 Encyc. Pl. & Pr. 562. The general rule is that an injured person may, at his option, sue all the wrongdoers in a single action, or may sue any one, or each in a separte action, or may sue any number he pleases less than all. Defendants, however, say as the above cases declare, that the rule does not apply unless there be some community in the wrongdoing among the parties charged. In other words, that the wrong must in some sense be their joint work. There must be something more than the existence of two...