City of Galena v. Galena Water Co.

• Decision Date: 23 October 1907
• Citation: 82 N.E. 421,229 Ill. 128
• Parties: CITY OF GALENA et al. v. GALENA WATER CO.
• Court: Illinois Supreme Court

229 Ill. 128

82 N.E. 421

CITY OF GALENA et al.

v.GALENA WATER CO.

Supreme Court of Illinois.

Oct. 23, 1907.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Jo Daviess County; R. S. Farrand, Judge.

Action by the city of Galena and another against the Galena Water Company. From a judgment of the Appellate Court, sustaining a judgment of the circuit court, sustaining a demurrer to the declaration, plaintiffs appeal. Affirmed.

M. J. Dillon, City Atty., and Jones & Kery, for appellants.

Sheean & Sheenn, for appellee.

This suit was brought by appellants, the city of Galena and the board of school directors of school district No. 120 of the county of Jo Daviess, against the Galena Water Company, appellee, to recover damages for the loss of a high school building by fire, which, it is alleged, resulted from the negligent breach of a contract entered into between the city of Galena, in 1886, and Henry S. Raymond, predecessor of the Galena Water Company. The substance of the declaration is correctly stated in the opinion of the Appellate Court in the following language: ‘The first count of the new declaration (which will herein be called the declaration) sets out a contract made in 1886 between the city of Galena and Henry S. Raymond, his successors and assigns, for the construction and operation by the latter of a system of waterworks in said city, in which contract is embodied an ordinance passed by the city of Galena, which Raymond therein agreed to fulfill and perform. The first section of the ordinance granted Raymond, his successors and assigns, the franchise for 30 years to maintain and operate, within and near the city of Galena, waterworks for supplying the city and inhabitants thereof with water for public and private uses. The second section provided: ‘The water supplied by said works shall be good, clear water, of sufficient quantity for all domestic, fire and manufacturing purposes within said city and suitable for those purposes.’ Section 3 provided for the capacity of pumping engines, and that they ‘shall be so connected to the pipe system that the pressure may be changed from gravity to direct pumping within at least fifteen minutes.’ It also provided: ‘A standpipe shall be erected on accessible high ground, of sufficient elevation to give reliable pressure for the use of the water in extinguishing fires in the buildings upon the hills in said city as well as below.’ Section 5 provided for the size and length of pipe to be laid throughout the city under the pipe system submitted with the ordinance and for the testing of said pipe to withstand a certain pressure, and provided that such pipe ‘shall be of ample size to carry out the provisions of this agreement, and affording the city where said pipes are laid first-class protection from fires.’ The ordinance provided that the city should rent a certain number of fire hydrants and pay certain annual rentals for the use thereof. The declaration averred that Raymond constructed the waterworks and entered upon the performance of the conditions and obligationsof said ordinance, and that afterwards his agreements and covenants were assumed by the Galena Waterworks Company, and that the city rented the hydrants and paid the annual rental as agreed. The first count then charged: That on or about April 11, 1904, a fire broke out in the uppermost part of a three-story brick building owned by said city of Galena and controlled and managed by said board of school directors and situated upon certain lots in said city; that the fire alarm was promptly given, and the water company notified of the location of the fire; that the fire companies of the city promptly responded and arrived promptly at said fire with their appliances, which were attached to the nearest fire hydrants, and were adequate and sufficient for the extinguishment of said fire and the hydrants near enough to said buildings to have afforded water adequate for the extinguishment of said fire if a sufficient quantity of water, as provided in section 3 of said ordinance, had been supplied, but that defendant persistently, carelessly, and negligently failed to supply said hydrants with a sufficient quantity of water for the extinguishment of said fire, in violation of its obligation under section 2 of said ordinance and contract; and that by reason of the tortious and negligent conduct of said water company to supply said hydrants with a sufficient quantity of water for the extinguishment of said fire it spread to the remaining portions of the building and destroyed it. The second, third, and fourth counts of the declaration each referred to the first count for the statement of the contract...