City of Memphis v. Browder

• Decision Date: 12 October 1927
• Docket Number: (No. 2877.)
• Citation: 4 S.W.2d 614
• Parties: CITY OF MEMPHIS v. BROWDER.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 614

4 S.W.2d 614

CITY OF MEMPHIS v. BROWDER.^*

(No. 2877.)

Court of Civil Appeals of Texas. Amarillo.

October 12, 1927.

Rehearing Denied November 9, 1927.

Appeal from District Court, Hall County; R. L. Templeton, Judge.

Suit by City of Memphis against J. D. Browder. From an order sustaining a demurrer to plaintiff's first amended original petition, plaintiff appeals. Affirmed.

Sam J. Hamilton and Elliott & Moss, all of Memphis, for appellant.

Fires & Williams, of Childress, for appellee.

HALL, C. J.

This is an appeal from an order of the district court of Hall county, sustaining a demurrer to the plaintiff City of Memphis' first amended original petition, in which the city sought to enjoin Browder, as the owner of the waterworks system, from charging and collecting $1.50 flat rate from such inhabitants of said city, who used water for servants' houses, in addition to the same flat rate used by such inhabitants in the principal residences owned by the several users.

The amended petition alleges in substance that Memphis is a city, duly incorporated and existing under chapter 2, title 18, of the Revised Statutes of 1895, and that Browder is the owner of the waterworks system in said city, doing business under the style and firm name of Memphis Waterworks; that on the 7th day of May, 1907, the city, by and through its duly elected officers, entered into a contract with D. Browder, evidenced by a franchise of that date, by the terms of which it granted D. Browder, by Ordinance No. 30, the privilege and right to use the streets, alleys, etc., of the city, in erecting, constructing, maintaining and operating a waterworks plant, for the purpose of supplying water to the city and its citizens; that in consideration for said Ordinance No. 30, Browder accepted its terms and conditions, a copy of which is made an exhibit to the petition, and thereby agreed and bound himself to furnish water to the city of Memphis and its inhabitants. Section 7, set out in the petition, fixes the rate for each residence at $1, and authorizes an additional charge for each closet, and private stable for each horse or cow, of 25 cents. It is further alleged that Browder constructed and operated the plant under and by virtue of the franchise, and has furnished water in accordance with the terms fixed by said ordinance, and by section 7 thereof, until on or about the 7th day of September, 1920, upon which date the rates to be charged were changed by the enactment of Ordinance 156; that prior to the enactment of this ordinance, J. D. Browder became a part owner with D. Browder in the ownership of said waterworks plant; that the recited purpose of said Ordinance 156 was to amend certain sections of the original Ordinance No. 30, and did amend section 7 of said ordinance No. 30, by adding the following:

"A minimum meter rate of $1.50 for the first 1,000 gallons and 50 cents for each additional 1,000 gallons, may be charged all residence and business connections, and that a minimum flat rate of $1.50 per month be charged for each tap in equipping a meter."

That since said amendment the Browders, in accordance with the terms thereof, have been furnishing water to the city of Memphis, and its citizens, until the death of D. Browder; that since his death, his son, J. D. Browder, is now the owner of said waterworks system, and is controlling and operating the same; that notwithstanding said rate regulations, above referred to, which have been acquiesced in and acted upon by the parties as hereinabove shown, the said J. D. Browder on or about the 1st day of June, 1926, and for some time prior thereto, violated such rate regulations by charging and demanding the additional sum of $1.50 from each resident having a servant's house and servants therein, within the yard or curtilage of said residence; that said charge for servant houses was in addition to the $1.50 flat rate theretofore charged for the family residence of the owner of such principal residence or curtilage; that such charge and demand was made without the consent of the occupants of such dwelling houses, and in violation of the rate regulations above referred to, and that Browder is threatening and continues to make threats of cutting off the water supply to each of such residences, occupied by such families, unless the additional charge of $1.50 flat rate is paid for each servant house. The petition further alleges that because such damage as may occur by reason of the wrongful cutting off of the water supply would be indefinite and uncertain and impossible of estimation, that plaintiff has no adequate...