Clay v. Catlettsburg, Kenova & Ceredo Water Co.

• Decision Date: 29 January 1946
• Citation: 301 Ky. 456,192 S.W.2d 358
• Parties: CLAY et al. v. CATLETTSBURG, KENOVA & CEREDO WATER CO.
• Court: Kentucky Court of Appeals

192 S.W.2d 358

301 Ky. 456

CLAY et al. v. CATLETTSBURG, KENOVA & CEREDO WATER CO.

Court of Appeals of Kentucky

January 29, 1946

Appeal from Circuit Court, Boyd County; Watt M. Prichard, Judge.

Action by Ella C. Clay and another against Catlettsburg, Kenova &amp Ceredo Water Company to recover alleged value of plaintiffs' residence which was totally destroyed by fire, on ground that defendant had failed to furnish an adequate supply of water to have saved their house from destruction. From a judgment sustaining demurrer to petition as amended, the plaintiffs appeal.

Judgment reversed for consistent proceedings.

Davis M. Howerton, of Ashland, for appellants.

Martin & Smith, of Catlettsburg, and Le-Wright Browning, of Ashland for appellee.

MORRIS Commissioner.

Ella C. Clay and Marie Newman owned a residence in Catlettsburg which was totally destroyed by fire on September 12, 1939. Thereafter they sought to recover of appellee its alleged value, $6500, on the ground that it had failed to furnish an adequate supply of water to have saved their house from destruction. The court sustained demurrer to the petition, and appellants amended by filing a substituted petition with amplifications. The original did not embrace the entire ordinance under which appellee, or its predecessor had been granted franchise; the amendment set it out in full.

As to their cause appellants charged that notwithstanding the fire department responded to an alarm promptly, properly manned and equipped to have prevented the destruction, the supply of water was inadequate. The court sustained demurrer to the petition as amended on an excerpt from the case of Board of Education of Somerset v. Kentucky Utilities Co., 231 Ky. 484, 21 S.W.2d 817, on the ground that the original franchise granted January 18, 1891, for a period of thirty years had expired, and that under the provisions of § 164 Constitution a frauchise may not be renewed or extended by agreement, expressed or implied, but only in the manner specifically provided.

The potent part of the pleading, following statements of facts the incorporation of the ordinance, and the prompt response of the fire department, is the allegation undertaking to fix liability on appellee, 'that defendant negligently wrongfully breached the covenants of said ordinance and franchise, in that it failed to establish or maintain a pressure in the water mains near to plaintiff's building of 75 pounds per square inch, and negligently and wrongfully breached its franchise and ordinance in that it failed to furnish a supply of water pressure sufficient under usual and ordinary circumstances such as there obtained to have prevented the fire from destroying their building, and that as a direct and proximate result of such neglect and wrongful acts, said fire was caused to reach and destroy their building to their damage &c.'

Certain sections of the ordinance provided for the installation of 40 fire hydrants, located as per ordinance, the city to pay an annual rental of $1475 for the furnishing of water therein specified to all public hydrants. Section 15 provides that the storage or distributing waterhead should be a reservoir of sufficient capacity to supply water as provided in the ordinance. A portion of § 16 reads: 'Pressure in mains shall be 75 pounds per square inch continuously or more, and if said pressure be below 75 pounds for any four successive weeks, hydrant rentals to cease until restored to 75 pounds pressure per square inch, which grantees or assigns shall do without necessary delay.' We shall dispose of the contention of appellant to the effect that disregarding the franchise, and irrespective of its expiration, the appellee was liable for damages under the common law. The argument is based on the admitted fact that appellee continued to operate to the time of the fire, without interruption, rendering the same service provided for in the ordinance, collecting for its service from the city and citizens, hence it was appellee's duty to exercise ordinary care to furnish sufficient pressure to extinguish fires. This contention may be fully answered by reference to Buford & Co. v. Glasgow Water Co., 223 Ky. 54, 2 S.W.2d 1027, 62 A.L.R. 1195; Tobin v. Frankfort Water Co., 158 Ky. 348, 164 S.W. 956; and Mountain Water Co. v. Davis, 195 Ky. 193, 241 S.W. 801; Atlas Finishing Co. v. Hackensack Water Co., 163 A. 20, 10 N.J.Misc. 1197; Baum v. Somerville Water Co., 84 N.J.L. 611, 87 A. 140, 46 L.R.A.,N.S., 966. By reference to Kentucky Utilities Co. v. Farmers' Co-op Stock Yards Co., 246 Ky. 40, 54 S.W.2d 364, it will be noted that our court is in the minority in holding to the rule that a water company is liable for loss resulting from failure to perform its contract to furnish water for fire protection, following the rule laid down in Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky. 340, 12 S.W. 554, 13 S.W. 249, 76 L.R.A. 77, 25 Am.St.Rep. 536. While adhering to the minority rule, we are not prepared to carry it to the extent of holding the company liable for a common law tort.

The petition shows that the original franchise was granted in January 1891, for a period of thirty years, hence expired in January of 1921, without renewal. It is vigorously argued by appellee that our holding in the Somerset-Utilities case, supra, is conclusive. In that case it was shown that the Utilities water franchise had expired in September of 1921. The board had sued the water company to recover a sum paid under protest to the company on the ground that under the terms of its contract it, the company, was to supply water to schools without charge. The allegations were as here; the company had continued to operate its works under terms and conditions of its franchise, charging the same rates to the city and the public, and further that the free service to the schools was a part of the consideration of the contract.

This operation had continued until January 1928 when the Utility Company threatened to stop the school service unless it was paid $1,327.53 claimed to be due. This was paid under protest, and a suit was filed to recover, and demurrer was sustained to the petition. We conceded, without deciding, that the petition sufficiently alleged an agreement to carry on the service after the expiration of the franchise, and held that such an agreement 'would have no binding effect whatsoever, as it would clearly contravene sections 163 and 164 of the Constitution' [231 Ky. 484, 21 S.W.2d 818], which provides that franchise rights shall only be acquired through the purchase of a franchise. We said that after the expiration of the franchise the company had only the right to remove the property within a reasonable time, and we may add, or apply for a new franchise, and since 1926 (Acts 1926, Ch. 137, KRS 96.010) could have compelled the city to provide for its sale. Kentucky Utilities Co. v. City of Paris, 297 Ky. 440, 179 S.W.2d 676. The Somerset case was referred to in City of Ludlow v. Union L., H. & P. Co., 231 Ky. 813, 22 S.W.2d 909, re-affirming the principle.

Appellant, to meet the arguments of appellee, takes the position, first, that since the appellee's franchise was granted prior to the adoption of the present Constitution, § 164, limiting the life of a franchise, does not apply, under authority of Louisville & N. R. Co. v. Bowling Green, 110 Ky. 788, 63 S.W. 4; and Slade v. City of Lexington, 141 Ky. 214, 132 S.W. 404, 32 L.R.A., N.S., 201, cited in Ashland Waterworks Co., 6 Cir., 251 F. 492, 498, which clearly holds that as to contracting parties, rights had vested.

We deem it unnecessary to determine whether the failure to purchase had...