Cleveland v. Malden Waterworks Co.

• Decision Date: 20 August 1912
• Citation: 125 P. 769,69 Wash. 541
• Parties: CLEVELAND v. MALDEN WATERWORKS CO.
• Court: Washington Supreme Court

125 P. 769

69 Wash. 541

CLEVELAND v. MALDEN WATERWORKS CO.

Supreme Court of Washington

August 20, 1912

Department 1. Appeal from Superior Court, Whitman County; Thomas Neill Judge.

Mandamus proceeding by Charles E. Cleveland against the Malden Waterworks Company. From an order granting a peremptory writ respondent appeals. Affirmed.

Wakefield & Witherspoon, A. C. Shaw, and E. P. Twohy, all of Spokane for appellant.

J. N Pickrell, J. M. McCroskey, and R. M. Burgunder, all of Colfax, for respondent.

CHADWICK J.

The material facts in this case are as follows: The plaintiff, Cleveland, is the owner of a lot abutting on Ninth street, in the town of Malden, in Whitman county. The defendant water company is a public service corporation, owning and operating a water system along Ninth street and other streets of the town, under a franchise from the town council. Sections 1, 2, 3, and 4 of the ordinance granting the franchise read as follows: 'Section 1. That the Malden Waterworks Company, a corporation existing under the laws of this state, its successors or assigns, be and is hereby granted the right and privilege of excavating and laying pipes and mains in the public streets and alleys of said town for the purpose of furnishing to its inhabitants fresh water for domestic and sewerage purposes and for fire protection and otherwise as may be designated by proper ordinance for a period of twenty-five years from the granting and acceptance of this ordinance.

'Sec. 2. The said corporation shall lay such pipes and place hydrants as directed by the street committee or such other committee of said town as may be charged with the duties of looking after the streets and alleys, provided that a sufficient number of persons on the streets to be benefited by said extensions shall first petition and sign contracts with the company guaranteeing twelve per cent. net on the estimated cost of said extension, which said pipes and mains shall be of sufficient size and of quality to furnish ample and sufficient water for all purposes intended and to be placed and extended for consumer's use, and commence the laying of same within such time as designated by resolution of the council and directions of the said street committee.

'Sec. 3. That it shall have the right to make the necessary excavations for the laying, maintaining and repairing of said pipes, mains and hydrants, but must without unnecessary delay refill all ditches and place the streets and grounds in safe and proper condition, and for the failure so to do immediately after being directed by the street committee, they may cause the same to be done at the expense of the said corporation and charge the same up as a tax against said plant.

Sec. 4. That said corporation may charge and collect such tolls for the furnishing of water to users and consumers as shall be considered reasonable and just to give them fair return on the investment, which price may be changed and revised at periods of five years after the first ten-year period, if so requested by resolution of the council and for a period of the first ten years the following rates shall be the maximum monthly amount which can be charged for the water under such reasonable rules and regulations as may be promulgated by said corporation: * * * Private dwellings, four rooms or less, $1.50. * * *'

The plaintiff tendered to the...