Farmer v. City of Nashville

• Decision Date: 24 April 1913
• Citation: 156 S.W. 189,127 Tenn. 509
• Parties: FARMER v. MAYOR AND CITY COUNCIL OF NASHVILLE.
• Court: Tennessee Supreme Court

156 S.W. 189

127 Tenn. 509

FARMER v. MAYOR AND CITY COUNCIL OF NASHVILLE.

Supreme Court of Tennessee.

April 24, 1913

Certiorari to Court of Civil Appeals.

Suit by J. W. Farmer against the Mayor and City Council of Nashville. A decree of the Court of Civil Appeals reversed a decree for complainant and remanded the case, and complainant brings certiorari. Decree of Court of Civil Appeals reversed, and decree of chancellor affirmed, and case remanded for further proceedings.

John R Aust, of Nashville, for plaintiff.

A. G Ewing, City Atty., and Frank Garard, Asst. City Atty., for defendant.

LANSDEN J.

This bill was filed by Farmer, as a resident citizen of Nashville. Tenn., to compel the defendant to furnish water for domestic purposes to the premises occupied by him. The chancellor decreed the relief prayed for, and upon appeal the Court of Civil Appeals reversed and remanded the case for further evidence upon certain issues not covered by the pleadings and not included in the agreement of facts made by counsel. The case is before us upon the petition of Farmer for writ of certiorari to the decree of the Court of Civil Appeals.

The record discloses that one Mrs. Young is the owner of a house and lot on Fifth street in Nashville, and that prior to February 14, 1911, these premises were occupied by a Mrs Vaughn. Mrs. Vaughn did not pay a water tax of $4 assessed by the defendant against Mrs. Young as the owner of the property. Notice of the delinquent tax was given to Mrs Young, and not to Mrs. Vaughn, and Mrs. Young did not pay. It is not shown whether Mrs. Young received the notice and neglected to pay, or whether she denies her liability for the tax.

The complainant took possession of the premises on February 15, 1911, and at that time the water was connected with and running through the hydrant serving the house rented by him from Mrs. Young, and he had no knowledge of the delinquent water tax at the time he made the contract of rental. On February 15th he tendered to the city a proper amount in cash under its rules and regulations to secure unmetered water services for a period of six months. This tender was declined by the city, and the water connection was cut off. It appears that in the regular course of business the proper city authorities became aware of the delinquency in the payment of the unmetered water tax for these premises on February 14th, and ordered the connection cut off, which was done on the 15th.

The defendant has power under its charter to construct and maintain waterworks and to furnish water to the inhabitants of the city of Nashville. It has constructed the waterworks plant, and has undertaken the duty of supplying water to all the inhabitants of the city for a price fixed by ordinance. The defendant built its water pipes into the property rented by the complainant, and has undertaken to supply water to the tenants and inhabitants of said house. The complainant is not now, and was not at the time the water connection was cut off, indebted to the city for water furnished him or his family at any time or place or on any other account. There is no well, or spring, or cistern, or other source of water supply upon or appurtenant to the premises occupied by the complainant and his family.

The defendant made the assessment of the water tax in controversy against the owner, Mrs. Young, the nonpayment of which was the occasion of the disconnection of the water services about which this suit was brought. The premises involved are unmetered, and were during the entire period for which the delinquency arose, and at the time the complainant tendered the requisite sum for water services.

The defendant's charter provides "that the board of public works shall have exclusive power to organize and control the waterworks and its appurtenances, and that it has power to construct and maintain waterworks for the purpose of supplying water to the inhabitants of the city of Nashville."

Section 151 of Smith & McAlister's Digest provides: "Hereinafter all assessments for unmetered water consumers shall be assessed against the owners of the property in place of against the consumers. ***"

Section 207 also provides: "Whenever any person, firm or corporation becomes indebted to the city for water and fails, on demand of the city's authorities to discharge said indebtedness as provided in section 160, it shall not be lawful to furnish water to said firm, person or corporation at the place where said indebtedness was contracted, or any other place within or without the city until said indebtedness is discharged."

It is insisted for the city that, under its ordinances regulating the water service, the defendant has no account with the occupant of the premises, but assesses the water services against the owner, and hence it was entirely within its rights when it declined to accept from the complainant advance payment for water service until the "owner or some one for her" had paid the back assessments, which had become delinquent before the occupancy of the premises by the complainant. It is claimed that section 151 of Smith & McAlister's Digest, supra, is reasonable, fair, and just, and not arbitrary or discriminatory and therefore the complainant has no legal right of action to compel the furnishing of water to him and his family.

Both the chancellor and the Court of Civil Appeals have settled this controversy against the contention of the city; but the latter court by a majority opinion remanded the case to ascertain certain facts not covered by stipulation of counsel, and which clearly pertain to issues not raised by the pleadings.

It was settled by this court in the case of Crumley v. Watauga Water Co., 99 Tenn. 420, 41 S.W. 1058, that a water company, having power under its charter to condemn private property for its necessary purposes, and obligated by the law of its creation to afford to the city of its location and the inhabitants thereof a plentiful supply of water, is a quasi public corporation, that enjoys and must exercise its opportunities for gain subject to its obligation to the public to supply water to all who apply therefor and tender the usual rates, and that this obligation is an implied condition of the grant of its franchises.

It was also settled in Watauga Water Co. v. Wolfe, 99 Tenn. 429, 41 S.W. 1060, 63 Am. St. Rep. 841, that such a water company is charged with the public duty of furnishing water to all of the inhabitants of the city of its location alike, without discrimination, and without denial, except for good and sufficient cause, but that such a company may adopt reasonable rules for the conduct of its business, and the operation of its plant, and such rules, so far as they affect its patrons, are binding on them, and may be enforced, even to the extent of denying water to those who refuse to comply with them.

The defendant is not especially authorized by the Legislature to enact section 151 of Smith & McAlister's Digest interposed as a defense to this suit, and hence its validity must be determined...