Graves County Water Co. v. Ligon, &C.
| Decision Date | 21 February 1902 |
| Citation | 112 Ky. 775 |
| Parties | Graves County Water Co. v. Ligon, &c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM GRAVES CIRCUIT COURT.
JUDGMENT FOR PLAINTIFFS AND DEFENDANT APPEALS. AFFIRMED.
ROBERTSON & THOMAS, FOR APPELLANTS.
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W. M. SMITH, ATTORNEY FOR APPELLEES.
CROSSLAND & CROSSLAND AND W. J. WEBB, OF COUNSEL.
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On July 30, 1891, the city of Mayfield made an ordinance providing for a supply of water and for electric lights for the city, by which it granted to appellant the franchise of supplying the city and its inhabitants with water and electric lights for a period of twenty-five years, appellant to keep a sufficiency of engine and boiler power, so that, if one engine or pump should get out of fix, there would be others which might be used for pumping water; all mains to be of suitable size, and to furnish an abundant supply of water. A public test of the power and capacity of the waterworks was to be given when completed. At this test they were to throw from separate hydrants in the business part of the city not less than three simultaneous streams, with fifty feet of hose, to the height of eighty feet. The city agreed to rent sixty-four hydrants, and pay therefor $3,840 per annum, and for any additional hydrants $50 each per annum. These hydrants were to be used only for extinguishing fires, and it was stipulated that they should furnish effective streams without the aid of portable engines. Appellant undertook to keep all these hydrants supplied with water, and to maintain them in effective working order, except during the time of repairing or removing any hydrant which had become ineffective by accident or other cause than willful negligence of appellant. Appellant was also to build a water tower not less than 12½ feet in diameter and not less than 130 feet in height, which should be for a constant supply of water. Appellant accepted the grant, and built the plant, and put the works in operation. After this the means theretofore provided by the city and its inhabitants for fire protection were abandoned. On June 26, 1901, a fire began in a house in the city, which spread to and burned appellees' house from the want of water in the hydrants there not being sufficient pressure to throw a stream of any size more than from two to five feet. There was no water in the tower, and the firemen were unable to get water to check the fire. By reason of this the fire spread to appellees' property and destroyed it. They then sued the appellant, alleging these facts. It demurred to the petition. Its demurrer was overruled. It then filed an answer, which it subsequently withdrew, and, the case having been submitted to a jury, a verdict was rendered in favor of appellees for $12,000. The court entered judgment on the verdict, and appellant prosecutes this appeal without a bill of exceptions showing the evidence heard in the trial court. It insists that its demurrer to the petition should have been sustained on the ground that, as there was no privity of contract between it and the property owners, appellees have no right of action against it on the contract made by it with the city; and that, this contract being evidenced only by the ordinance of the city, and not signed by it, no action can be maintained against it under the statute of frauds.
In Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky., 340, (11 R., 738), (14 R., 141), 12 S. W., 554, 13 S. W., 249, 7 L. R. A., 77, 25 Am. St. Rep., 536, this court, after very mature consideration, held that the property owner might maintain an action against the water company for the destruction of his property by reason of its failure to maintain a water supply pursuant to its contract with the city. This decision is rested by the court on the ground that such a contract is made by the city as the corporate representative of its citizens, and for their benefit; and that they may, therefore, maintain an action under the rule allowing one to maintain an action on a contract made with a third person for his benefit. This decision was followed in Duncan v. Water Co., (12 R., 35), 12 S. W., 557), and in Duncan's Ex'rs v. Water Co., (12 R., 824), 15 S. W., 523. The learned counsel for appellant earnestly insists that these cases should be overruled, as contrary to the weight of authority and...
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