Hall v. Mayor And Council Of Calhoun

• Decision Date: 26 September 1913
• Citation: 140 Ga. 611,79 S.E. 533
• Parties: HALL et al. v. MAYOR AND COUNCIL OF CALHOUN.
• Court: Georgia Supreme Court

79 S.E. 533

(140 Ga. 611)

HALL et al.

v.MAYOR AND COUNCIL OF CALHOUN.

Supreme Court of Georgia.

Sept. 26, 1913.

(Syllabus by the Court.)

1. Municipal Corporations (§§ 271, 277*)—

Powers—Waterworks System.

The provisions in the charter of the town of Calhoun (Acts 1895, p. 145), that the municipality shall have perpetual succession, shall have power and authority to make, ordain, and establish, from time to time, such by-laws, ordinances, resolutions, rules, and regulations as shall appear to them to be necessary and proper for good government, security, welfare, and interest of the said town of Calhoun and the inhabitants thereof, and for preserving the health, morals, peace, and good order of the same, not in conflict with the Constitution and laws of this state, and shall have power and authority in and by said corporate name to contract and to be contracted with, to sue and be sued, to plead and be impleaded in any of the courts of this state, to have and use a common seal, to hold all property real and personal, now belonging to said town, for the purpose and interest for which the same was granted or dedicated, to acquire by gift or purchase such real or personal property as may hereafter be deemed necessary and proper for corporate purposes, and to use, manage, improve, sell, convey, rent, or lease any or all of said property as may be deemed advisable for the corporate interest, were sufficient to authorize the municipality to establish and construct a system of waterworks. Mayor, etc., of Rome v. Cabot, 28 Ga. 50; Heil-bron v. Mayor, etc., of Cuthbert, 96 Ga. 312, 23 S. E. 206.

(a) The municipality having charter power to establish and construct a system of waterworks,

where necessary to go beyond the corporate limits to obtain its supply of water, it was not ultra vires of the corporation to enter into the contract mentioned in the statement of facts. Langley v. City Council of Augusta, 118 Ga. 590, 45 S. E. 486, 98 Am. St. Rep. 133. See, also, City of Quitman v. Jelks & McLeod, 139 Ga. 238, 77 S. E. 76.

(b) The ruling in Loyd v. Columbus, 90 Ga. 20, 15 S. E. 818, which was criticised and doubted in Langley v. Augusta, supra, will not be extended.

(c) It follows that the contract between Hall and the municipality could not be canceled on the ground that it was ultra vires of the corporation.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 726, 732; Dec. Dig. §§ 271, 277.*]

2. Waters and Water Courses (§ 190*)— Municipal Water Supply — Contract — Consideration.

The contract was not subject to be canceled on the ground that it was void for the want of consideration. It recited a consideration. Nathans v. Arkwright, 66 Ga. 179; Martin v. White, 115 Ga. 866, 42 S. E. 279. And the grantor received water from the municipality, and the latter expended money in making water connections for the grantor in accordance with the terms of the contract. Atlanta & West Point Railroad Co. v. Camp, 130 Ga. 1, 60 S. E. 177, 1'5 L. R. A. (N. S.) 594, 124 Am. St. Rep. 151, 14 Ann. Cas. 439.

[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 268; Dec. Dig. § 190.*]

3. Waters and Water Courses (§ 190*)— Municipal Water Supply — Contract — Reasonable Use of Water.

Properly construed, the municipality acquired by the contract the right to the reasonable use of the water, notwithstanding such use might operate to the detriment of the "fish pond."

[Ed. Note.—For other cases, see Waters and Water Courses, Cent Dig. § 268; Dec. Dig. § 190.*]

4. Waters and Water Courses ($ 190*)— Municipal Water Supply — Contract — Right to Private Use—Assignment.

The right of the grantor to use water supplied by the municipality free of charge by express terms of the contract was not assignable.

[Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. § 268; Dec. Dig. § 190.*]

5. Prior Decisions—Distinguishments.

The case differs from that of Horkan v. City of Moultrie, 136 Ga. 561, 71 S. E. 785, where an effort was made to compel a city to furnish water "free of charge" for an indefinite time under an agreement by the municipal council for that purpose, though made for a consideration; and from Tarver v. Mayor, etc., of Dalton, 134 Ga. 462, 67 S. E. 929, 29 L. R. A. (N. S.) 183, 20 Ann. Cas. 281, where a contract by a municipal corporation not to collect taxes on certain property in excess of a specified amount was involved.

6. Motion for New Trial.

There was no error in overruling the plaintiff's motion for new trial.

Error from Superior Court, Gordon County; A. W. Fite, Judge.

Action by G. A. Hall and others against the Mayor and Council of Calhoun. Judgment for defendants, and plaintiffs bring error. Affirmed.

H. L. Hall owned a spring near the town of Calhoun, Ga. The municipal authorities of Calhoun decided to establish a system of waterworks, to be supplied in part with water from the spring. The parties mentioned on June 13, 1898, entered into and signed a written contract under seal, witnessed as a deed, which, after making in substance the above recitals, set forth the following in effect: The municipality should pay for the plumbing necessary to convey the water from the main nearest Hall's residence into any room of his house or place on his lot designated by him, with the right to him at his own expense to make other connections, not exceeding four, for the purpose of furnishing water on his own premises; the...