Gainesville Water Co. v. City of Gainesville

• Decision Date: 18 May 1910
• Parties: GAINESVILLE WATER CO. v. CITY OF GAINESVILLE.
• Court: Texas Supreme Court

128 S.W. 370

GAINESVILLE WATER CO. v. CITY OF GAINESVILLE.

Supreme Court of Texas.

May 18, 1910.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by the City of Gainesville against the Gainesville Water Company. From a judgment for plaintiff, affirmed by the Court of Civil Appeals (122 S. W. 959), defendant brings error. Reversed and remanded.

Gregory, Batts & Brooks and Potter & Culp, for plaintiff in error. J. T. Adams, J. H. Garnett, and Davis & Thomason, for defendant in error.

BROWN, J.

In the year 1883 the city of Gainevsille was a municipal corporation, organized under the laws of this state, with power to make the contracts hereinafter mentioned. The Gainesville Water Company was organized under the laws of this state in the year 1883, and on the 17th day of October of that year the city adopted an ordinance by which it granted to the company the franchise to construct its works, lay its pipes, etc., in the streets and alleys of the city. The franchise was to continue for a period of 25 years from that date, with the privilege at the end of that time for the city to buy the works at its appraised value, and, in case it should fail so to do, the franchise was to be continued for another 25 years with the same privileges as those granted in the said ordinance. This ordinance was subsequently superseded by an amendment adopted in 1889; hence it is unnecessary for us to set out its provisions in detail. The latter ordinance provided that the waterworks should be accepted by the city when compliance with the requirements of the contract should be demonstrated by a test made in the presence of the city council, or some committee appointed for that purpose. On the 28th day of March, 1884, the city council adopted this resolution: "Whereas, the Gainesville Water Company has complied with its contract in the construction of waterworks in the city of Gainesville, said contract being dated the 17th day of October, 1883, and has been fully and satisfactorily demonstrated by actual tests this day in our presence." On the 16th day of March, 1889, the city council adopted an amendment to the ordinance of 1883, which, in the main, conformed to the provisions of the prior ordinance, but contained, in addition, the following provision: "It shall be the duty of the water company at any time upon demand by the mayor or city council to make such tests as to the capacity and condition of the works of said water company as required in section 4 of this ordinance, and said water company, shall, each and every week open each and every fire hydrant in this city, and shall at all times keep said hydrants in repair and in good condition at its own expense." In the year 1897 a holder of bonds of the water company sued the city of Gainesville in the federal court at Dallas, Tex., but the water company was not made party to the suit. A compromise was made between all of the parties, and an agreement was entered into, which modified the ordinance of 1889 only in regard to the amount to be paid to the water company by the city for rental of hydrants, and contained the following provisions:

"(3) The water to be furnished to the city of Gainesville and its inhabitants through said system of waterworks shall be water suitable for domestic consumption and in sufficient quantities to supply the city of Gainesville and its inhabitants.

"(4) In all other respects said ordinance and contract of March 16, 1889, shall be and remain in full force and effect."

On the 27th day of June, 1907, the city of Gainesville instituted this suit against the water company to forfeit its franchise whereby it maintained its plant in the streets of the said city. A trial was had before R. E. Carswell, special judge, without a jury, and, after hearing the testimony, he filed findings of fact, from which we extract the following part of the findings, which are material to the issues necessary to be discussed by us: "Prior to the 2d day of February, 1897, the defendant obtained its supply of water from Elm creek, which supply was insufficient and became exhausted during dry seasons, and was foul and impure and unfit for domestic use. * * * The defendant sank a deep well and secured a supply of artesian water for its system, which well is a few feet from a large shallow well which the defendant had previously constructed, and the water from the artesian well is first pumped into the large well, and from there forced into the defendant's mains. This well is probably hardly sufficient to supply the demands for water, but it is soft wholesome water and well suited for domestic use; but, if the well is not sufficient to supply the demand, at a reasonable cost, other wells could be sunk, and an abundant supply of artesian water obtained. Defendant has frequently been requested by plaintiff's authorities to sink another artesian well and to furnish artesian water exclusively, but has always refused to do so, claiming that the water furnished was as good as the contract required. * * * And that the defendant is insolvent, and unable to improve its fire service or to improve its water supply, even if it so desired, and is making no effort so to do. The provisions of said ordinance in reference to the quality of water furnished and the pressure to be given in case of fires were the main considerations for the enactment of said ordinance and material and vital to the franchise, and the defendant has persistently failed to comply therewith. The contract for hydrant rental set forth in the fourth clause of said franchise has seriously embarrassed plaintiff's city council in making the provisions they deemed proper for supplying the city and its inhabitants with water, and has tended to unduly fetter the successors of the council making said contract; and, if sustained, will amount to the granting of an exclusive right and produce a monopoly." In the application for writ of error, counsel for the plaintiff in error entered into detail of the facts bearing upon the different points raised therein. The statement of facts contains more than 400 pages, and we feel justified in taking the statements made in the application as correct, wherein they have not been controverted by counsel for the defendant in error. Counsel for the defendant in error makes this statement as a limitation upon the jurisdiction of this court in the examination of the case: "This court has nothing to do with facts, but deals with legal conclusions arising from facts." The statement is correct when applied to the truth of the facts found, which depend upon the preponderance of evidence, but upon the legal sufficiency of the evidence to sustain the judgment of forfeiture this court will look to all of the evidence. We will state the facts, so far as necessary, in connection with our discussion of each proposition of law.

Counsel for the defendant in error submits the following propositions in support of the judgment of forfeiture: (1) The company did not construct the works on the Holly system with a duplex compound condensing pumping engine. (2) That the pumping capacity of the works did not equal...