Haugen v. Albina Light & Water Co.

• Decision Date: 14 December 1891
• Citation: 28 P. 244,21 Or. 411
• Parties: HAUGEN v. ALBINA LIGHT & WATER CO.
• Court: Oregon Supreme Court

28 P. 244

21 Or. 411

HAUGEN v. ALBINA LIGHT & WATER CO.

Supreme Court of Oregon

December 14, 1891

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

Application of Iver S. Haugen for writ of mandamus to the Albina Light &amp Water Company. A demurrer was sustained to the answer, and a judgment given making the writ peremptory, from which defendant appeals. Affirmed.

The other facts fully appear in the following statement by LORD J.:

This is an action for a writ of mandamus to require the defendant to supply the plaintiff with water by tapping a certain water-main on Tillamook street, and allowing him to connect there with a service-pipe, etc. The facts alleged, in substance, are these: That the defendant is a corporation the business of which, among other things, is to furnish the city of Albina, and the inhabitants thereof, with water. That it is operating under a franchise granted to said company by the council of the city of Albina by virtue of an ordinance as follows: "An ordinance granting the right of way through the streets for laying pipes for the purpose of conveying water through the city. The city of Albina does ordain as follows: Section 1. That the Albina Water Company, its successors and assigns, be, and are hereby, granted the right and privilege of laying pipes through the streets of the city of Albina, for the purpose of conducting water through the city. Sec. 2. That the ditches for laying pipes shall be sunk two feet, and the pipes for conducting the water shall be under the surface or level of the established grade 18 to 20 inches on all improved streets, and no pipe shall be laid so as to interfere with the construction of sewers: provided, that nothing in this ordinance shall be construed so as to grant any exclusive right or privilege of conducting water into the city: provided, further, that said water company shall in no case charge more than one dollar per month for the first faucet, and fifty cents for each additional faucet, in the same building, for family use, or at a private dwelling-house," etc. That the purpose and object of granting to said company the right to lay water-mains in the streets of said city was that the citizens of said city might be furnished with a supply of pure and wholesome water. That by virtue of the authority conferred by said ordinance, the defendant laid down a four-inch water-main in and through Tillamook street, in the then city of Albina, from the east line of the original town-site of the city of Albina to the west line of Twenty-Fourth street, in Irvington, and connected the said main with the main on Margaretta avenue, in said city, and for nearly a year past has been pumping water, and conducting it through said main on Tillamook street, to supply the citizens of Irvington residing east of Fourteenth street. That the defendant utterly refuses to allow any one residing on Tillamook street, between the east line of the original town-site of Albina and Fourteenth street, in Irvington, to tap said main, and refuses to supply them with water therefrom. That the plaintiff resided on Tillamook street between the points above named, and is the owner of lot 2, block 126, of Irvington. That said lot abuts on said Tillamook street, and the plaintiff is constructing thereon a dwelling, and is desirous of securing a supply of water from the water-mains of said street, that being the only source of water supply for said premises. That the plaintiff has repeatedly requested the defendant to supply him with water from said main, but has always been refused. That on the 11th day of July the plaintiff tendered said defendant $2.50, the regular fee charged by the defendant for tapping a water-main with a service-pipe, and demanded from the defendant to be connected with said water-main in Tillamook street, and to be supplied therefrom with water; and that said defendant refused to accept said tender, and refused to connect the plaintiff's premises with said main, and refused to supply him with water therefrom. That said refusal is willful, and is done for the avowed purpose of debarring the residents on said Tillamook street, between the original town-site of Albina and Fourteenth street, and particularly the plaintiff, from the use of water from said main. That the plaintiff is without any legal remedy in the premises except the writ of mandamus, etc. The defendant denies that, under the authority conferred by said ordinance, it laid down a four-inch or any water-main in or through Tillamook street, in said city, as alleged; or connected the said alleged main with the main on Margaretta avenue, in said city; or for nearly a year past, or for any time, has been pumping water through said alleged main; but the defendant alleges the fact to be that Ellis G. Hughes and C.H. Prescott are owners of the tract of land known as "Irvington" and "John Irving's First Addition," east of Fourteenth street, in Albina; and that in pursuance of an agreement entered into between the said Hughes and Prescott, for the purpose of supplying water to the property in Irvington, and said John Irving's First addition, the defendant laid down in said Tillamook street a supply-pipe for said Hughes and Prescott, for which pipe the said Hughes and Prescott paid, for the sole purpose of supplying said lands with water. That said pipe is owned by said Hughes and Prescott, and is under their absolute control. That the defendant has no right to tap the same, except with the consent of Hughes and Prescott, without paying the said Hughes and Prescott the sum of $3,600, the cost of laying the same. That the business along the line will not justify the defendant in incurring the expense of purchasing said service-pipe and converting it into a main. That defendant has repeatedly applied to said Hughes and Prescott for leave to tap said service-pipe, without having to pay the price charged therefor, but they wholly refuse to give consent for the defendant to do so. Denies that the defendant's refusal to tap said main or refusal to supply the plaintiff with water is willful, or without lawful cause, or that the same is done with the avowed or any purpose of depriving the residents of Tillamook street, or the plaintiff, from the use of water from the alleged main, but alleges that the reason for not supplying the plaintiff with water from said service-pipe of said Hughes and Prescott is that it cannot do so without becoming liable to pay said Hughes and Prescott for said pipe the sum of $3,600, which sum the defendant is not now prepared or able to pay, and for the further reason that the water which would be used along said street will not justify the expenditure, etc. The plaintiff demurred to the new matter stated in the answer, and when the cause was heard the court sustained the demurrer, and gave judgment making the writ peremptory, from which this appeal is taken.

Dolph, Bellinger, Mallory & Simon, for appellant.

J.C. Moreland, for respondent.

LORD J., (after stating the facts.)

From this statement of the case, as presented by the pleadings the court below held that, when the defendant entered upon and laid down its water-mains in the street, in pursuance of the privilege granted by the ordinance, it became bound to supply every abutter upon the street with water. The contention for the defendant is that the ordinance does not impose the duty upon it to furnish water, but only, if it shall furnish water, that the charge therefor shall not exceed a certain sum herein specified; that the grant is to lay pipes through the streets for the purpose of conducting water through the city in the mode prescribed, and so as not to interfere with the construction of sewers; but that it contains no provision requiring it to supply the city or its inhabitants with water; hence the ordinance imposes no duty upon the company to furnish water to any one. In whatever form the argument is presented, it rests essentially upon this contention. While admitting that it is a corporation organized to supply the city and its inhabitants with water, and that the city, by its ordinance, granted it the right to lay water-mains through its streets for the purpose of carrying into effect the objects of its incorporation, it insists that the ordinance is the measure of the rights conferred and the obligation imposed, which, by its terms, only grants "the right and privilege of laying pipes through the streets of the city of Albina for the purpose of conducting water through the city," under the conditions imposed, without "a word in the language of the grant from which it could be inferred that the company is placed under any obligation whatever to supply any inhabitant of the city with water." Counsel say: "If the ordinance had imposed upon the company the duty of supplying the inhabitants with water as a part of the conditions of the grant, such a conclusion might be supported; but where no such duty is imposed, and nothing is said except that, when the company furnishes water, it shall charge no more than a certain rate per month, they fail to see the soundness of the reasoning which makes it the duty of the company to furnish water." It is thus seen that it is the absence of any express provision in the ordinance, imposing the duty upon the defendant to supply water, upon which the argument and the case for the defendant is predicated. The effect to be given to the fact that the defendant company was incorporated, under the law, to furnish water to the city and its inhabitants, and the implied obligation which the defendant assumed by accepting the grant or franchise under the ordinance, is entirely overlooked. The defendant is treated as a private corporation, the business of which is private, and not of a public...