City of Fort Collins v. Park View Pipe Line
| Decision Date | 16 March 1959 |
| Docket Number | No. 18023,18023 |
| Citation | 336 P.2d 716,139 Colo. 119 |
| Parties | CITY OF FORT COLLINS, a municipal corporation; William H. Allen, individually and as Mayor and Councilman; J. Morris Howell, individually and as Councilman; W. Frank Aydelotte, individually and as Councilman; Guy H. Palmes, individually and as City Manager, Plaintiffs in Error, v. PARK VIEW PIPE LINE, a mutual ditch company; Paul A. Hamilton, individually and on behalf of 50 others similary situated; Maud Atkinson; Harry A. Irwin, individually and on behalf of 10 others similarly situated; Edith Holsinger; Edwin A. Miller and Arthur Beye, individually and on behalf of 37 others similarly situated; Dr. Glenn A. Sundquist; Floyd J. Holsinger; A. R. Rector and E. J. Betz, Defendants in Error. |
| Court | Colorado Supreme Court |
Arthur E. March, O. Rex Wells, Fort Collins, for plaintiffs in error.
Chester A. Bennett, Fort Collins, for defendants in error.
We will refer to plaintiffs in error, City of Fort Collins, as the City; the City Council as Council; Park View Pipe Line, a mutual ditch company comprised of Hamilton and fifty others, as the Pipe Line Company; to all other defendants in error who comprise one class as Betz and others.
The Pipe Line Company and Betz and others were plaintiffs in the trial court. They commenced action to enjoin the City from discontinuing their water service; to compel the City to continue to furnish water, and to enjoin the City from requiring them, as a condition to future water service, to sign a new water users agreement. Plaintiffs were users and purchasers of water from the City water system living outside of the City limits. They or their predecessors had obtained city water by filling out and filing with the City an application, which application, when accepted by Council, became their contract. Some of the plaintiffs had been purchasing city water under the contracts for a great many years. The Pipe Line Company and the City had a formal contract which is not the same as that between the City and Betz and others.
Pursuant to City Ordinance No. 24, 1954, 'All contracts for the sale of water from the Fort Collins System of water works to users outside of the city limits of the City of Fort Collins, also the charges made therefor, shall be governed as provided by resolution or resolutions of the City Council hereafter to be adopted. * * *' (Section 26.)
On December 10, 1954, acting under the power of the ordinance, City Council adopted a resolution that 'all contracts for the sale of water from the Fort Collins System of Water Works to users outside of the city limits of the city of Fort Collins, except those special contracts to large users, and except those contracts entered into pursuant to the aforesaid resolution of May 29, 1953, be and the same are hereby terminated effective February 1, 1955.' The resolution further provided that the sale of water to outside users who failed to submit an application in accordance with the new water agreement adopted by resolution of Council May 29, 1953, should be discontinued as of February 1, 1955. Various extensions were granted by Council, but on June 3, 1955, the City Manager, on orders issued by City Council, commenced shutting off service to those formerly receiving water under the former applications who had not complied with Council's directive to sign new water users agreements. The complaint of the plaintiffs was immediately filed, and the City immediately appeared and agreed to the giving and granting of temporary injunction.
The complaint of plaintiffs sets out Fort Collins as a home rule city; that permission had been given plaintiffs or their predecessors to tap the municipal water system for water to be used outside the city limits; that they had expended considerable sums of money to tap the municipal water system; that they had been notified that their contracts and permits had been cancelled, and that their water service would be discontinued unless they executed new outside water users agreements. They further alleged that the City Council became incensed over an annexation controversy and that the action of the Council in cancelling the plaintiffs' contracts and permits was a vengeful conspiracy and alleged scheme to circumvent the annexation statutes.
The City in its answer alleged that the plaintiffs did not state a claim for relief but admitted all of the allegations of the complaint with the exception of the charges that the Council was motivated by vengeance. The facts at the hearing were undisputed.
The trial court made lengthy findings of fact, and its conclusions of law were: That the City disposed of its surplus water on the basis of permissive use in its proprietary capacity; that the public had no enforceable right to demand water service; that the annexation statutes make it mandatory that a petition for annexation be signed personally by the petitioners and that the 'Outside Water Users Agreement' and shutting off outside city consumers for failure to sign same are contrary to public policy, illegal and void. The court by decree made the temporary injunction permanent to the limited extent only that the defendants were enjoined from the use of the 'Outside Water Users Agreement' and enjoined the city from discontinuing water service for failure to execute the same. In all other respects the temporary injunction was dissolved and the court entered findings in favor of the City and against the plaintiffs.
There are many assignments of error by the City and assignments of cross error by the Pipe Line Company and Betz and others. All of them can be resolved under three broad questions.
First: Was the court correct in holding that the City sells its water in its proprietary capacity and in contracting can impose such conditions and limitations as the parties by their contract may agree upon?
This question is answered in the affirmative.
The determination of this issue is the ruling of this court in City of Englewood v. City and County of Denver, 123 Colo. 290, 229 P.2d 667, 672, wherein it was held:
'Under the conditions presented by the terms of the ordinance, the water company, and Denver, its successor in interest, is not under public duty to furnish water to Englewood at any kind of rates or to furnish water at all.
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'* * * Application of this test to the facts before us reveals that this extraterritorial supply of water is on a nonutility basis, and in so operating, under express statutory authority, it can collect such charges therefor and make such...
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