City of Montgomery v. Greene

• Decision Date: 23 January 1913
• Citation: 60 So. 900,180 Ala. 322
• Parties: CITY OF MONTGOMERY v. GREENE ET AL.
• Court: Alabama Supreme Court

60 So. 900

180 Ala. 322

CITY OF MONTGOMERY v. GREENE ET AL.

Supreme Court of Alabama

January 23, 1913

On Rehearing, February 14, 1913.

On Rehearing.

Appeal from Chancery Court, Montgomery County; L. D. Gardner Chancellor.

Bill by R. H. Greene and others against the City of Montgomery. From a decree for complainants, respondent appeals. Affirmed.

The case made by the bill is that, under an act of the Legislature, the city of Montgomery is furnishing water through a waterworks system, owned and operated by it, to the inhabitants of the city of Montgomery, both within the city and without the city, but in the police jurisdiction thereof that, before the town of Cloverdale was incorporated, the city of Montgomery did extend and lay a water main, as part of its waterworks system, along the street known as the Norman Bridge Road, passing the intersection of Cloverdale Road, which place was at that time, and is now, outside the corporate limits of the city, but within the police jurisdiction of said city; that orator Greene occupies lot 15 in block 17, orator Roquemore occupies lots 3 and 4 in block 17, and Matthews occupies lots 11 and 12 in block 17 in the town of Cloverdale, all according to the map of said town that prior to March 1, 1906, and prior to the incorporation of the town of Cloverdale, your orators or their privies in estate, at their own expense, laid a water pipe diagonally across blocks 1 and 6, and into the Cloverdale Road, and thence extending along the Cloverdale Road to its intersection with Ridge avenue or Felder street, and then extending along Felder street to a point opposite lots 3 and 4 of block 17; and that at said point Roquemore laid a pipe to his residence, and the pipe was laid across lot 4 and into lots 11 and 12 and into the residence of said Matthews, and a pipe was laid from said intersection of Felder street and the Cloverdale Road and into the lot occupied by said Greene and his residence, and also laid a pipe into lots 6 and 7, in block 6, into the residence of H. A. Whittle, which main pipe was afterwards tapped into the water main or pipe of the city of Montgomery at the intersection of the Norman Bridge and Cloverdale Road; and the said parties or their privies entered into an agreement with the city of Montgomery to supply the water through said pipes, and the city of Montgomery placed a water meter on said pipe, at or near the Norman Bridge Road, to measure the water passing through said pipe to your orator, orator agreeing to pay therefor $16 each quarter of a year, beginning January 1st, with the privilege of using 80,000 gallons per quarter, and, if more than 80,000 gallons was used per quarter, to pay the city of Montgomery at the rate of 35 cents per 1,000 gallons in excess of 80,000 gallons per quarter. The bill then avers a claim by the city for 25,000 gallons excess for the quarter ending April 1 1912, with the allegation that the city insists on the payment of the bill; that orators offered to pay $16, which was tendered and refused. The city has threatened, and does threaten, to shut off the water supply through said pipes, and to cease and discontinue water service to complainant. It is then averred that the meter was rusty and does not accurately measure the water, and that no such amount as claimed was used. The averment is then made of orator's readiness, ability, and willingness to pay into court any amount of money that the court may order and direct during the pendency of this cause, and until the same is finally determined. The bill also averred the readiness, ability, and willingness to pay for the quarter under dispute, or to pay any just and fair amount for the water consumed. It is then averred that orators have requested the city to place individual meters on the several pipes at the property line leading into the different residences, so as to measure the water consumed separately and individually by each of your orators, and at the same time have offered to give or donate to the city, free of charge, the said water pipe from the Norman Bridge Road to the property line of their respective residences; and that the city has refused and declined to place said meters as requested, and arbitrarily insist upon having one meter at the Norman Bridge Road to measure the water to your orators, and compel orators to divide and adjust among themselves, as best they may, the charges therefor; and it is impossible for them to ascertain or know the amount of water used by them respectively, so that they can pay each for the water consumed by him--all of which is unjust and unfair. It is then averred that, when the private line is laid, the city of Montgomery did not have, and would not lay or extend, a water pipe to their said residences, thereby forcing orators to build and lay their own water pipe at their own expense. The regular charges for water in the city are then alleged to be $3 per quarter for the use of 20,000 gallons or less and, for any excess over 20,000 gallons, of 25 cents per 1,000; that orators have requested the same rate, which has been refused, and which is a discrimination against orators. It is then alleged that the city has and does place individual meters for other persons in the immediate neighborhood, which persons have laid pipes from said city main to their residence, and that some of said meters are placed on pipes for others within 100 feet of Roquemore's property line, where he has requested a meter to be placed, and that other meters have been placed for others within 200 or 300 feet of the places where Roquemore and Matthews desire their meters to be placed, and that individual meters have been placed on other lines, some much longer, and some much shorter, from the city's main than the pipes of orator. The bill then alleges for what use the water is put, and that orator will be greatly inconvenienced by having the water service discontinued, which the city has threatened to do, unless the bill above mentioned is paid on or before the 20th day of April, 1912. On these facts, it is prayed that the city be enjoined from cutting off the water, but that they be required to continue the service until the final determination hereof. The bill then prays for a permanent injunction, and that the court proceed to fix and determine a just and reasonable rate for your orators to pay for water furnished and supplied to them by the city of Montgomery, and that the city be directed and required to place individual meters for each of your orators, and be required to furnish water through said pipe laid by orators individually, and to make separate and individual contracts with orators to supply them with water. On the case made by the affidavits of the complainants and the respondents and their agents, and the allegations of the bill, the chancellor granted the relief prayed, from which decree the city appeals.

John V Smith,...