Green v. City of Rock Hill

• Decision Date: 27 February 1929
• Docket Number: 12607.
• Citation: Green v. City of Rock Hill, 149 S.C. 234, 147 S.E. 346 (S.C. 1929)
• Parties: GREEN et al. v. CITY OF ROCK HILL et al.
• Court: South Carolina Supreme Court

147 S.E. 346

149 S.C. 234

GREEN et al. v. CITY OF ROCK HILL et al.

No. 12607.

Supreme Court of South Carolina

February 27, 1929

Proceeding for injunctive relief in the original jurisdiction of the Supreme Court, brought by F. D. Green and others against the City of Rock Hill and others.Injunction denied, and petition dismissed.[Copyrighted Material Omitted]

An abstract of the contract involved in this case is as follows:

"Whereas the city is about to construct a water supply system as an addition to its present system; and whereas, the company is about to erect a printing, dyeing and finishing plant, involving an investment of not less than one million five hundred thousand dollars ($1,500,000), and has made known to the city that the adequate and proper supply of water and disposal of sewage is the primary essential for the conduct of its business; and whereas, the city has heretofore found as a fact, as evidenced by a resolution of the city council, copy of which is annexed as an exhibit, that the building of an additional water system is essential from the point of view of the needs of the city and of its inhabitants, and that the construction of such additional system and the operation and maintenance of same in accord with the terms and conditions of this agreement will provide the city and its inhabitants with a supply of water reasonably commensurate with the investment involved at a cost for operation and maintenance which is financially advantageous to the city; and whereas, the city believes that the construction and operation of the company's plant will in many respects be beneficial both to the municipality and its citizens--the parties agree:

"First.The city agrees to construct an additional water supply system, in accordance with certain plans and specifications, upon certain right of way of the city and upon certain lands to be furnished for that purpose by the company, within a time limited; should the city fall to carry on the work as agreed or to complete the same within the time agreed, in the opinion of Roberts & Company, Inc., engineers, the company shall have the right to continue and complete the construction; the sum necessary to construct and complete the said additional water supply system shall, within a time limited and before the commencement of building of the same, be deposited with the People's National Bank and the National Union Bank, of Rock Hill, as cotrustees, to be dedicated solely to the purposes of this agreement and to be payable by such trustees for the actual costs of construction of the said additional water supply system upon certificates of Roberts & Company, Inc., engineers, whose determination of performance shall be binding upon contractors, the city, and the company.

"Second.The city grants and conveys to the company for the term of forty-nine (49) years, the full use, enjoyment, and possession of said additional water supply system and all the lands and buildings of the city upon which it may be located; the company during said term shall supply at its cost and expense the power and labor necessary to keep and maintain the said additional water supply system in good and efficient operation, and shall make, or cause to be made, all repairs and replacements thereto; the company will cause said system to be kept continuously in operation to an extent which will supply to the city two million (2,000,000) gallons of unfiltered water per day as it may require, to be delivered by the company to the city at a point of connection with the city's present water system for the general use and benefit thereof, the remaining gallonage of unfiltered water to be used by the company for its own purposes; the company shall have the right to do all things necessary and incidental to operating and maintaining such water system upon the streets, public grounds, etc., subject to the condition that excavations shall be under the supervision of the city, and that the company will save the city harmless from resulting damages and that the company will procure liability insurance for the benefit of the company and the city; in the event of an emergency due to the failure of the city's other water supply system creating a shortage, the company shall deliver to the city, as part of the daily two million (2,000,000) gallons provided for, two hundred fifty thousand (250,000) gallons of filtered water upon the terms specified; the company shall not dispose of nor distribute any part of the water furnished by the additional water system to members of the public.

"Third.The city agrees that the additional water supply system to be constructed by it shall be modern in type, properly equipped and installed under efficient engineering advices; the plans and specifications shall be drawn and the execution supervised by Roberts & Company, Inc., engineers, the cost of such engineering services to be borne by the city; the city will save the company harmless from claims and demands for damages, etc., caused by the said additional water system and its operation, except for damages to the company's employees and such as shall be due to the neglect of the company in its care and operation of the plant.

"Fourth.Herein the company's obligation to keep the water system in continuous operation to the extent of supplying the city with at least two million (2,000,000) gallons of water daily is again set forth and further defined and elaborated with respect to notice to be given by the city of its requirements, as to accurate measuring by meter of the supply of water taken by the city, as to monthly payments by the city to the company of a proportion of the cost of electrical power or current, and, for and during a period of ten (10) years to commence five (5) years after the establishment of the company's manufactory of a stipulated sum as additional compensation to the company for the operation and maintenance of the said water supply system, the city not to be liable for such additional compensation in the event the company should be exempted by law from the payment of certain municipal and/or county taxes during certain specified periods.

"Fifth.The company shall not be liable for the potability of the water supplied to the city nor for interruption nor diminution of the water supplied the city caused by strikes, lockouts, etc., by breakdowns or shutdowns reasonably necessary for repairs and replacement, by failure of electric power or other causes beyond its control; in the event of the failure of the company to supply the city with water in accordance with the terms provided the city shall have the right, after notice, to enter upon the premises for the purpose of pumping the water to which it is entitled; the company grants to the city a license, coterminus with the contract, to erect upon its lands a filtration plant and reservoirs, and agrees to convey the said lands to the city without further consideration upon the natural expiration of the contract.

"Sixth.The city grants the right to the company to enter upon the land, right of way, and properties of the city between the Catawba river and the lands of the company and to take possession of structures whereon any part of the additional water supply system shall be located, together with the right when reasonably necessary, to excavate for the purpose of inspecting and repairing said water supply system, and agrees to save harmless the company against actions, claims for damages, etc., based upon trespass, etc., upon the land, or for acts of the company in creating and maintaining such excavations as may be reasonably necessary, provided the city shall not be rendered liable for injury to person or property by reason of the negligence of the company, its agents and employees in the work of excavation or in the manner of protecting same.

"Seventh.The city shall not have the right to terminate, abrogate, and rescind the contract for any default of the company, except after the notice provided and after compliance with other stipulations and conditions set forth in this section.

"Eighth.The contract shall be automatically renewed for a further period of forty-nine (49) years, unless the city shall give notice of its intention not to renew five (5) years prior to the expiration of the term of this agreement; if the city shall elect not to renew the agreement, the company shall have the option upon three (3) years' notice in writing to purchasing the said additional water supply system at the appraised value thereof, not to exceed the sum of two hundred seventy-five thousand dollars ($275,000.00); the appraised value to be determined by arbitration in the manner provided in said section.

"Ninth.The city agrees that in addition to all legal remedies, in the event of default by the city the company shall be entitled to equitable relief by way of injunction and/or specific performance.

"Tenth.The agreement shall be personal to the company and nonassignable and nontransferable by it, except as provided in this section.

"Eleventh provides for the method of serving all notices required by the terms of the contract.

"Twelfth.The city agrees to receive into its sewerage system and to dispose of the sewage from the land and buildings and the effluent of the company of whatsoever nature, including water or chemicals wholly or partly used in connection with the company's printing, finishing and dyeing activities in the due course of the natural conduct of the company's business, without obligation on the part of the company to treat said sewage before disposing of same into the said city sewage system and without liability on the part of the company for said sewage after the same shall have passed into the city's sewer; and the

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