Harbison v. Knoxville Water Co.

• Decision Date: 23 September 1899
• Citation: 53 S.W. 993
• Parties: HARBISON v. KNOXVILLE WATER CO.
• Court: Tennessee Supreme Court

53 S.W. 993

HARBISON v. KNOXVILLE WATER CO.

Court of Chancery Appeals of Tennessee.

September 23, 1899.

Appeal from chancery court, Knox county; Hugh G. Kyle, Chancellor.

Bill by Sam Harbison against the Knoxville Water Company. From an order dismissing the bill, complainant appeals. Affirmed.

Green & Shields, for appellant. Chas. T. Cates, for appellee.

WILSON, J.

This bill was filed February 1899, to enjoin the defendant from cutting off the water supply for domestic purposes from the premises occupied by complainant, and to secure a mandatory injunction commanding defendant to furnish complainant water for the purpose stated, without requiring him to comply with certain of its rules and regulations, characterized in the bill as oppressive and unreasonable. The bill, after stating the location of the premises occupied by complainant, and that the defendant was a corporation organized under the laws of this state for the purpose of supplying water to the city of Knoxville and its inhabitants, avers that, having been given the rights to lay its pipes, etc., in the streets and alleys of the city of Knoxville, it is a public corporation, and engaged in a public business. The bill further avers that complainant, soon after he occupied the premises described, commenced taking water from the defendant for domestic purposes, and continued to get water from it until May, 1899, paying in advance therefor, under the rules of the company; that the hydrant or pipe from which complainant obtained his supply of water was located in his yard, adjacent to his house, and that in May, 1898, he, at his own expense, had a faucet put upon his hydrant, and began to use water for sprinkling his yard and the street adjacent thereto; that for water thus used he paid the additional charges exacted by the company, and continued to use water for both domestic and sprinkling purposes until January 1, 1899; that at this date he called at the office of the company in Knoxville, and informed its officers that he did not desire to take water for sprinkling purposes, but did desire to take water for domestic purposes, and offered then to pay its charges for water to be thus used; that his reason for not wishing the water for sprinkling purposes was that during the winter and spring seasons nature's rains furnished the water free of charge, and he had no need of an artificial supply for sprinkling purposes, and hence he wished to avoid the expense of taking it from the company; that the officers of the company refused to accept his tender of payment for water for domestic use alone, unless he would file the threads from the hydrant or faucet so as to make it impossible to attach a hose thereto in such a way that it could be used for sprinkling purposes. It is alleged in the bill that complainant then told the defendant that he did not intend to use the hose at all, nor to consume any water in sprinkling, and stated that he would not injure or destroy his property by filing the threads off of the pipe or hydrant as they demanded. The complainant gives as a reason for thus declining to remove the threads or faucet from his hydrant that he expected, when warm weather came, he might possibly wish to again use the water for sprinkling purposes, and his idea was to save the cost of again, at that time, having to put the hydrant in a condition to use the hose for sprinkling purposes. It is also charged in the bill that the defendant has a rule or custom requiring its patrons to take water, when they use it for sprinkling purposes, for an entire season, — from April to November, — and that its patrons, under its rule, are not permitted to take and pay for water for any less period than the season as thus arbitrarily fixed by it; and the insistence of the bill is that this rule is harsh, oppressive, unreasonable, unjust, and illegal. The bill concedes that the defendant company has the right to make fair and reasonable regulations respecting the methods by which it shall supply water to the citizens of Knoxville and its other patrons. The complainant, however, denies that it has the right to make him destroy or injure his property in the manner above indicated, as a condition precedent to furnishing him water for domestic purposes, and he denies that it has the right to make him take and pay for water for sprinkling purposes for the entire season as fixed by the company. The bill states that complainant has heretofore used the water for domestic purposes alone, and that he now wishes to resume its use for this purpose, and that the company refuses to supply him with water for this purpose, under its unjust and unreasonable rule. The bill further states that the defendant, February 1, 1899, cut off his domestic supply of water altogether from his premises, because he would not pay its unjust charges in advance. It is alleged that complainant's sole reliance for water is upon the defendant, and that, if it is allowed to cut off the supply, he will be put to great cost, expense, and annoyance in providing himself with the water necessary for cooking, washing, and other domestic purposes. It is said in the bill that complainant is now compelled, in order to supply himself with water for domestic purposes, to get the same from his neighbor's cistern, across the street from him. The charges of the defendant for water for domestic purposes are tendered with the bill. The complainant, however, denies the right of the defendant to cut off his water supply because its charges therefor were not paid in advance. He also denies the right of the defendant company to exact from its patrons, as a condition precedent to furnishing them with water, its price or charges for said water for three months in advance, or for any other period in advance. The rules and regulations of the company in this regard are assailed as unjust, oppressive, and unreasonable. The prayer of the bill is for an injunction compelling defendant to abstain from cutting off the water supply of complainant for domestic purposes, and for a mandatory injunction compelling defendant to furnish complainant water. A decree is also asked establishing and declaring complainant's rights in the premises, under the facts, and especially for a decree compelling the defendant to furnish complainant water for domestic purposes without requiring him to injure, remove, or destroy the pipe or faucet placed by him upon his hydrant, and without requiring him to take and pay for the water for the entire season as fixed by defendant, and without requiring him to pay in advance therefor. The rules of the company exacting these requirements are asked to be set aside, as unreasonable and oppressive, and as beyond the power of defendant to establish. An injunction issued under the prayer of this bill.

The defendant water company answered the bill in full. In this answer it is said that, for many years before complainant took possession of the premises where he now lives, it was engaged in furnishing water to the inhabitants of the city of Knoxville, and that since July 29, 1892, it had been furnishing water to the tenants occupying the premises now occupied by the complainant, under an application and agreement signed by the owner of said premises; and a copy of this application is filed as Exhibit A to the answer. The answer fully sets out the rules and regulations of the company governing its method of supplying water to its patrons, and also the charges therefor. One of the rules is: "No addition to or alteration of any pipe or fixture, changing or affecting the use of water, shall be made by any person without permission in writing of the water company. Any such change of fixtures, or any improper use of water, will be charged for at 50% above schedule rates." Rule 6 of the company is as follows: "In all occupied premises, where no meter is used, every faucet, water-closet, bath tub, set basin, sink, fountain, or any other fixture, whether used or not, will be deemed and held as used, and will be charged for, so long as it remains connected with the service pipe. Parties desiring to discontinue the use of any fixtures must have the same disconnected, and then the charges for that use, except for sprinkling, which is charged for by the season, will cease from the time when notice of the same is left at the company's office." Another part of the rules of the company is: "No hose allowed unless water is taken for other purposes at the rates provided therefor; rates governed by number of lineal feet frontage, and include the privilege of washing windows and sidewalks, and sprinkling lawns and also street in front of taker's premises, from April 1st to November 1st of each year. A sprinkling rate will be charged where there is a hose fixture, whether same is used or not, when water is turned on to any service having hose fixture, or when hose fixture is added. The rate for sprinkling shall be proportioned as follows: On or before July 1st, full season rate will be charged; after July 1st, ¼ full season rate will be charged, per month, for all unexpired time of the sprinkling season." A provision of the charter of the company is: "If any person or persons shall take and use any of the water of said company for domestic or other...