City of Colorado Springs v. Colorado City

• Decision Date: 03 February 1908
• Citation: 94 P. 316,42 Colo. 75
• Parties: CITY OF COLORADO SPRINGS v. COLORADO CITY.
• Court: Colorado Supreme Court

94 P. 316

42 Colo. 75

CITY OF COLORADO SPRINGS v. COLORADO CITY.

Supreme Court of Colorado

February 3, 1908

Appeal from District Court, El Paso County; Wm. P. Seeds, Judge.

Action by the city of Colorado City against the city of Colorado Springs. From a judgment for plaintiff, defendant appeals. Affirmed.

W. P. Kinney, for appellant.

John R Watt, John McCoach, O. F. Ingraham, and Harvey Riddell, for appellee.

STEELE C.J.

Stated generally, the complaint avers that in consideration of the granting to the defendant, the city of Colorado Springs, of a right of way through the streets of the then town of Colorado City, the defendant agreed to furnish water from its mains to the plaintiff, the city of Colorado City, for fire purposes free of cost, and also the supply water to the inhabitants of the plaintiff for domestic uses and purposes upon the same terms and for the same price as water was furnished by the defendant to its own citizens and inhabitants; that the plaintiff did grant the defendant the right and privilege of laying its pipes and mains along the streets, alleys, and other public places, and that the defendant did lay its mains and pipes in the streets, alleys, and other public places and ever since the year 1878 the defendant has been occupying the streets and alleys of the plaintiff for the purpose of conducting water through the pipes so laid, pursuant to said agreement, and that the defendant has been permitted at all times to enter upon the streets and alleys of the plaintiff and to dig and excavate therein whenever necessary for altering, changing, and repairing said mains and pipes, free of expense and cost to the defendant; that said agreement has been ratified, approved, and acquiesced in and acted upon by both plaintiff and defendant from the year 1878 until the year 1902, and that defendant has since the year 1878 until the year 1902 furnished the plaintiff with water for fire purposes free of cost, and has furnished a supply of water to the inhabitants of the plaintiff for domestic uses and purposes upon the same terms and for the same price as water for the same purpose was furnished and supplied to its own citizens and inhabitants; that defendant has at all times hitherto permitted, ratified, and acquiesced in the right of plaintiff to erect additional fire hydrants at its own cost, and has permitted pipes to be laid and connection made with defendant's mains, pipes, and appliances whenever water was required for domestic uses and purposes by the citizens and inhabitants of the plaintiff; that in the year 1902 the defendant demanded of the consumers of water in Colorado City a rate 25 per cent. higher than that charged the consumers of water in Colorado Springs, and that the said defendant threatens to enforce the collection of said water rate, and that on the 23d of May, 1902, the defendant passed an ordinance requiring that each person residing without the city limits of Colorado Springs should pay for the use of water 25 per cent. in addition to the amount of the water rates charged the inhabitants of Colorado Springs. The defendant admits the furnishing of water to the plaintiff without charge of fire purposes, and admits furnishing the inhabitants of plaintiff water at the same rate as charged the citizens of Colorado Springs, as alleged in the complaint, and admits that since the 1st day of July, 1902, it has demanded of the citizens and inhabitants of the plaintiff a rate 25 per cent. higher than is charged to the citizens and inhabitants of defendant, and admits that many of the citizens and inhabitants of plaintiff, in order to prevent the water supply from being turned off and discontinued by the defendant, have paid said charges to defendant under protest. The defendant denies the existence of a contract between the two cities, as alleged by the plaintiff, and says that plaintiff consented to the laying of pipes in the city of Colorado City upon consideration of defendant's agreeing to furnish water to the city and inhabitants thereof upon such terms and for such time as the defendant might from time to time determine. A temporary injunction was made permanent, enjoining the defendant from interfering with the plaintiff in taking water from and in using water from the water mains for fire and municipal purposes, and from demanding or receiving from the citizens and inhabitants of plaintiff, or any of them, for water for domestic purposes, any sum in excess of that demanded and charged by the defendant from its own citizens and inhabitants for like uses of water. In the decree it is stated that 'nothing herein contained shall prevent the defendant from time to time fixing and establishing rules and regulations as to the tapping of its water mains, which general rules and regulations shall be applicable as well to the plaintiff as to the defendant, nor prevent the defendant from time to time establishing such water rates uniform as between the citizens and inhabitants of the plaintiff and defendant, as the said defendant may from time to time consider proper.' From the judgment, the defendant appealed to the Court of Appeals.

The defendant makes the following contentions: (1) That there was no evidence in the case from first to last that established any contract or agreement between the plaintiff and defendant of the kind contended for by the plaintiff. (2) That, even if such a contract or arrangement had been shown by the evidence, the same is ultra vires, and beyond the power of the city council to make. We shall discuss these contentions in the order presented.

No written contract between the cities was produced. The following from the records of the city of Colorado Springs was introduced: August 5, 1878 'Discussion was had at some length touching the most feasible route for the waterworks, when motion was made by Alderman Walker, seconded by Alderman Crissey, and carried, that the same be located through Colorado City, as per E. S. Nettleton's survey.' October 7, 1878: 'In order to facilitate as far as possible the securing of the right of way for the waterworks through the several premises from their source to their terminus, the following resolution was unanimously adopted by a full yea vote, to wit: 'Be it resolved by the city council of Colorado Springs, that Matt France, the mayor of said city, and presiding officer of this council, be, and he is hereby authorized and empowered to act for this council, and in behalf of the city, to take whatever steps, and institute whatever proceedings he may deem necessary to procure the rights of way for the laying of water pipes in connection with the construction of the waterworks heretofore authorized by the inhabitants of said city.'' June 6, 1887: 'Alderman Heimbaugh offered the following resolution and moved its adoption, which motion was carried by unanimous vote: 'Resolved, that the town of Colorado City, when the board of trustees of said town shall confirm to this city the right of way for water mains through the streets, alleys and public grounds of Colorado City, be allowed to have fire hydrants attached to the city waterworks, provided that they are done and kept in repair entirely at the expense of the town of Colorado City, and under the direction of the superintendent of our waterworks; the use of such fire plugs to be restricted to the same regulations of our city.'' Also the following from the records of Colorado City: October 7, 1878: 'A petition from the city of Colorado Springs for the right of way through the streets and alleys of the town of Colorado City, for the purpose of laying pipes for waterworks for certain consideration. On motion, R. Quimby was appointed a committee of one to enter into an agreement with the said city, the agreement to be submitted to the approval of the board.' October 17, 1887: 'It was moved that the following resolution be adopted: 'Resolved, that the city of Colorado Springs have the right, privilege and license to lay water pipes and mains in any and all of the streets and alleys in the town of Colorado City, north of the Fountainque Bouille: Provided always, that the said city of Colorado Springs shall furnish to the inhabitants of said town of Colorado City water at the same rate and charge that the same is furnished to the inhabitants of Colorado Springs, under the same rules and regulations as govern the uses and supply of water in said Colorado Springs.'' March 18, 1889: 'On motion of Trustee Stumpf, a right of way is granted the city of Colorado Springs to lay water pipes through the streets and alleys of this town, if the right is given to tap the new pipe at any place within the city limits; and provided further that one thousand dollars is appropriated by Colorado Springs counsil to extend pipe through said streets.' A contract between the city of Colorado Springs and the town of Manitou, signed by the mayors of the municipalities, was also received. Oral testimony was taken, and it was shown that Anthony Bott acted for the town of Colorado City, owing to the illness of Quimby, the then mayor. Mr. Bott testified that an agreement was made between the town and the city, by the terms of which Colorado Springs was to have the right of way through the streets of Colorado City, in consideration of the city furnishing water free of charge for fire purposes, and the inhabitants of the town water at the same rate the inhabitants of Colorado Springs were furnished water. Witnesses stated...