City of Ogden City v. Bear Lake & River Water-Works & Irrigation Co.

• Decision Date: 26 March 1898
• Docket Number: 908
• Citation: 16 Utah 440,52 P. 697
• Parties: OGDEN CITY, RESPONDENT, v. THE BEAR LAKE & RIVER WATER-WORKS AND IRRIGATION CO. ET AL., APPELLANTS
• Court: Utah Supreme Court

52 P. 697

16 Utah 440

OGDEN CITY, RESPONDENT, v. THE BEAR LAKE & RIVER WATER-WORKS AND IRRIGATION CO. ET AL., APPELLANTS

No. 908

Supreme Court of Utah

March 26, 1898

Appeal from the Second district court, Weber county. H. H. Rolapp Judge.

Action by Ogden City against the Bear Lake & River Water-Works &amp Irrigation Company and others for injunction and equitable relief. From an order appointing a receiver on plaintiff's motion, defendants appeal.

Reversed and remanded.

Evans &amp Rogers, E. G. Vaughan, and A. G. Horn, for appellants.

Where the question in a pending action is a dispute as to the title of the property, and both parties claiming title thereto, and the defendant is in possession, equity will not appoint a receiver. Bateman v. Superior Court, 54 Cal. 285; State v. Court, 34 P. 609; Schlects, App. 60 Pa. St 172; Maples v. Scott, 4 Ill.App. 268; Thompson v. Sherard, 35 Barb. 591; Guernsay v. Powers, 9 Hun 78; Cofer v. Echerson, 6 Ia. 502; Chicago Oil Co. v. Petl. Co., 57 Pa. 83; Emerson and Wall App. 95 Pa. St. 258; Talbot v. Scott, 4 K. & J. 111; Rawlins v. Henry, 77 N.C. 469; High on Receivers 560-61-62-555-6, 573, 575, 578-592.

Equity will not interfere by a receiver in limine. High on Receivers, 14, 560, 573; 20 Enc. of Law 260; Brown v. Chase (Mich.), Walk 43; Fogarty v. Bourke, 2 Dr. & War. 580; Gray v. Chaplain, 2 Russ. 126; Skinners v. Irish Society, 1 Myl. & Cr. 161.

It is held that the mere fact that the corporation is insolvent does not furnish sufficient ground for the appointment of a receiver. Land Co. v. Blevins, 34 S.W. 828, 832; French Bank case, 53 Cal. 495; Cattle Co. v. Brind, 23 S.W. 819.

It is a well established principle, and one which we think cannot be controverted, that upon the application for the appointment of a receiver, the merits of the case should not be determined as was done in this case. Seldon v. Weeks, 2 Barb. 532; Conro v. Gray, 4 How. 166; Higgins v. Bailey, 7 Rob. 613.

That the act of plaintiff in authorizing the defendants to construct and maintain a water system within its limits was not ultra vires, see: Ill. Trust & Savings Bank v. City of Arkansas City, 76 F. 271; Columbus Water Wks. Co. v. Mayor, etc., 28 P. 1097; Wood v. Water Wks. Co., 7 P. 233; Burlington Water Wks. Co. v. City of Burlington, 23 P. 1068; Columbus Water Wks. Co. v. City of Columbus, 26 P. 2; Manley v. Emlen, 27 P. 844; Safety Ins. Wire Co. v. City of Baltimore, 66 F. 140-141; San Francisco Gas Co. v. City of San Francisco, 9 Cal. 453, 468-9; Commonwealth v. City of Philadelphia, 132 Pa. St. 288; New Orleans Gas Light Co. v. City of New Orleans, 42 La. 188-92; Tacoma Hot. Co. v. Tacoma Light Co., 3 Wash. St. 316, 325; Wagner v. City of Rock Island, 146 Ill. 139; City of Vincennes v. Citizens Gas Light Co., 132 Ind. 114, 126; City of Indianapolis v. Indiana Gas Light Co., 66 Ind. 396, 403; Read v. Atlantic City, 49 N. J. L. 558, 562.

Where the statute authorizes action by the legislative body of a city and does not require such action to be taken by ordinance, it may be taken by a vote upon a motion or by the passage of a resolution. Smalley v. Yates, 13 P. 845; Board v. DeKay, 148 U.S. 591; Couiter v. Board, 54 N. J. L. 325; City of Green Bay v. Brauns, 50 Wis. 204; First Dill. Mun. Corp. (4th ed.) 307 and notes; State v. Jersey City, 27 N. J. L. 493; Battle v. Passaic, 45 N. J. L. 171; Merchants Union Co. v. Chicago Ry. etc., 70 Iow. 105; Sower v. City of Philadelphia, 35 Pa. St. 231; San Francisco Gas Co. v. City of San Francisco, 6 Cal. 190; First Mun. v. Cutting, 4 La. 335; City of Croffsville v. Bardon, 130 Ind. 149.

E. M. Allison, Jr., C. C. Richards, J. H. Macmillan, and C. C. Dey, for respondent.

An order appointing a receiver is not a final judgment, from which an appeal will lie. Irrigation Co. v. Canal Co., 14 Utah 155; U. S. v. Church, 5 Utah 394; In re Kelsey, 12 Utah 393; Eastman v. Gurrey, 14 Utah 169; Watson v. Mayberry, 15 Utah 265; White v. Pease, 15 Utah 170; Nelson v. Southern Pacific, 15 Utah 325; Bear River Valley Orchard Co. v. Hanley, 15 Utah 507; Lodge v. Twell, 135 U.S. 232; Dainese v. Kendall, 119 U.S. 53; McGourkey v. Toledo etc., Co., 146 U.S. 284; Eaton, etc., Co. v. Varnum, 10 Ohio St. 622; Mining Co. v. Dodds, 6 Nev. 261; Holden's Adm's. v. McMakin, Par. Eg. Cas. 270; Coates v. Cunningham, 80 Ill. 467; Hottenstein v. Conrad, 5 Kan. 249; Rolling Mill Co. v. R. R. Co., 31 Kan. 90; Johnson v. Hanner, 2 Lea. 8; Duncan v. Campau; 15 Mich. 415; Brown v. Vandermeulen, 41 Mich. 418; Wilson v. Davis, 1 Mont. 98; French Bank case, 53 Cal. 495; French v. Alvarado, 64 Cal. 529; Lumber Co. v. Williams, 71 Tex. 444; Hannon v. Weil, 69 Miss. 476; Forgay v. Conrad, 6 How. 201; Am. Con. Co. v. Ry. Co., 148 U.S. 378-9.

That the act of the city was ultra vires see: Huron Water Wks. Co. v. Huron, 30 L. R. A. 848; 2 Dillon Mun. Corp. sec. 635; 1 Ibid, sec. 508; 1 Ibid, secs. 27, 110; Morawitz Priv. Corp. 1120 to 1129; Merewether v. Garrett, 102 U.S. 473; New Orleans v. Morris, 105 U.S. 600; 2 Beach on Pub. Corp., sec. 1327; 15 Am. & Eng. Enc. of Law, pp. 1100-1103; Water Wks. Co. v. Reed, 50 N. J. L. 665; Noel v. City of Antonio, 33 S.W. 266, and cases cited; Farmers' L. & T. Co. v. Galesburg, 133 U.S. 156; West Hartford v. Hartford W. Comns, 44 Conn. 360; Smith v. Nashville, 88 Tenn. 464; Roberts v. Louisville, 92 Ky. 95.

And such property so dedicated to, and held for the public uses of, the inhabitants of Ogden City could not be subjected to the payment of the debts of the city. Its public character forbids such an appropriation. Huron W. W. Co. v. Huron, 30 L. R. A. 848, 855; Merewether v. Garrett, 102 U.S. 473; 2 Dillon Mun. Corp. sec. 576; New Orleans v. Morris, 105 U.S. 600; 15 Am. & Eng. Enc. Law 1068.

The city had no power to give away or sell its water works. Huron W. W. Co. v. Huron, 30 L. R. A. 848; New Orleans v. Morris, 105 U.S. 600; R. R., etc., Co. v. St. Louis, 12 Fed. Cas. 1199; and note p. 1206; Atty. General v. Detroit, 71 Mich. 93; McCullough v. Bd. of Edu., 51 Cal. 418; City, etc. v. Itsell, 80 Cal. 57; Hoadley v. San Francisco, 124 U.S. 639, 646.

The statutory provisions were mandatory and the power to sell, lease or otherwise dispose of, or to ratify a defective or irregular sale must have been exercised by ordinance in order to be valid. Borough of Millford v. Water Co., 124 Pa. St. 6101; S. C. 17 A. 186; Town of Durango v. Pennington, 8 Colo. 257; S. C. 7 P. 15; McCoy v. Briant, 53 Cal. 249, 251; Water Co. v. City of San Diego, 59 Cal. 519, 522; City v. Sears, 2 Cal. 589; Hunt v. Lambertville, 45 N. J. L. 281; Newman v. City of Emporia, 32 Kan. 456; S. C. 4 P. 818; McBrian v. Grand Rapids, 56 Mich. 95; 1 Dillon Mun. Corp., sec. 309 and note; 2 Beach Pub. Corp., sec. 1328 and note; 1 Ibid, sec. 251; Brown v. Mayor, 63 N.Y. 239; People v. Swift, 31 Cal. 26; Cross v. Morristown, 18 N. J. Eq. 305; New Orleans v. Clark, 95 U.S. 644; McCracken v. San Francisco, 16 Cal. 591; Reese on ultra vires, secs. 189, 190, 194.

The appointment of the receiver was discretionary. And unless there has been an abuse of that discretion, the order appointing will not be reviewed on appeal. High Rec., secs. 7, 25, 65; Beach Rec., secs. 5, 7; 20 Enc. Law, 18-20, 107-108; Rolfe v. Burnham, 68 N.W. 980; Pomeroy Eq. Jur., Vol. 3, sec. 1331; U. S. v. Church, 5 Utah 361; Ostrander v. Weber, 114 N.Y. 95; Winona v. Huff, 11 Minn. 119; Caldwell v. Gulton, 31 Pa. St. 483; Den v. Craig, 15 N. J. L. 191; Hancock v. McAvoy, 151 Pa. St. 464; Road Co. v. Smith (N.Y.), 15 Barb. 358; Parker v. Packing Co., 17 Or. 510; S. C. 21 P. 822; Wood v. Turnpike Co., 24 Cal. 488.

It appears from the record in this case that on July 16, 1884 the Ogden Water-Works Company assigned and conveyed to Ogden City, Utah, for the consideration of $ 74,364.50, and for the further consideration that the latter assumed all the liabilities of the former, all the water rights, rights of way, ditches, dams, flumes, reservoirs, water pipes, hydrants, and all instruments used for the purpose of diverting and distributing water owned and used by such company, and belonging to or connected with its water system; that the city of Ogden took possession of such water rights and system, and dedicated them to the use of its inhabitants, and repaired, improved, and extended the same, and established, by ordinance, water rates. It appears further that on August 6, 1889, a contract was entered into between Ogden City and one John R. Bothwell, by which the former purported to convey to the latter the right to furnish water to the city and its inhabitants, and the use of its streets for the purpose of laying water pipes for the water system described. The contract also provided: That upon the completion and operation of the system within the time designated, and in consideration of the benefits secured, the city would lease to him, for the full time that said Bothwell or assigns should furnish water through the system for municipal purposes, the water right owned by it, for an annual rent of one dollar. "That, within one year from the date hereof, he or his assigns will have in operation a complete distributive water system, furnishing the city and her inhabitants a plentiful and ample supply of water suitable for domestic purposes, continuously, from the mountains immediately east, and, as a part of said system, will have completed on said date a conduit, commencing in Ogden canon, at a sufficient elevation, and made of size sufficient to convey the flow of Ogden river, and terminating at the mouth of the canon, and from the terminus thereof a supply main or mains of sufficient diameter to convey an abundance of water for all purposes, as contemplated by this contract, to the intersection of Pierce avenue and Twenty-Fifth street,...