Hubbard City v. Bounds

• Decision Date: 26 May 1906
• Citation: Hubbard City v. Bounds, 95 S.W. 69 (Tex. App. 1906)
• Parties: HUBBARD CITY v. BOUNDS et al.
• Court: Texas Court of Appeals

95 S.W. 69

HUBBARD CITY v. BOUNDS et al.

Court of Civil Appeals of Texas.

May 26, 1906.

Rehearing Denied June 16, 1906.

Appeal from District Court, Hill County; W. C. Wear, Judge.

Action by Hubbard City against W. R. Bounds and another. From a judgment in favor of defendants, plaintiff appeals. Reversed and remanded.

Henry Bishop, F. P. Works, and R. M. Vaughan, for appellant. E. W. Bounds, for appellees.

TALBOT, J.

Appellant instituted this suit for the purpose of compelling specific performance of a contract entered into between it and the Hubbard City Waterworks Company for the construction and operation of a waterworks system in said city, and to prevent by injunction a violation of said contract. That portion of the contract sought to be enforced and certain provisions relating thereto read thus: "That for and in consideration of forty-five hundred dollars ($4,500) in Hubbard City 6 per cent. waterworks bonds paid to us in advance, and other valuable considerations hereinafter named, we, the said Hubbard City Waterworks Company of Hubbard City, Hill county, Tex., do hereby agree to erect and establish in your city a system of waterworks, comprising one standard duplex pump of ample daily capacity; boilers of ample power to operate the pump; pump and boiler house of ample size, and, if necessary, a standpipe 12 feet in diameter by 100 feet high (same shall rest on adequate foundation); 10,000 feet of standard cast iron pipe size 6 inches; 10,250 feet of standard cast iron pipe size to be 4 inches; 6,000 pounds of special casting for connections, etc. (said pipe to begin at pumping station, and to be laid in such streets as your honorable body may direct, with due regard to the important parts of the city); 10 double nozzle standard fire hydrants (said hydrants to be located at such points along the line of main line of pipe as your honorable body may determine); combination water gauge to show the pressure in main and height of water in standpipe, and all valves, fittings, and appliances to make the system complete in every respect, of first-class material, and machinery erected and placed into position by experienced mechanics; the said system to have for its water supply the lake or reservoir located south of the city, and known as the `Hubbard Lake Club's property,' bought of James R. Jones, and the said Hubbard City Waterworks Company agrees to increase the pumping capacity at any time the demands of the city may warrant, and to extend the main pipe at any time your honorable body may require, provided that a fire hydrant be placed at every 400 feet of said extension; all fire hydrants to be under the control and care of the chief of the fire department, or whomsoever your body may appoint for the prevention and extinguishment of fire. They, the said Hubbard City Waterworks Company, proposes to maintain this system of waterworks in a good and efficient working order during the term of this contract. The city further agrees to pay for fire protection from the 10 fire hydrants to be located the sum of $250 per annum, payable quarterly in advance out of the city's general fund for a period of 18 years, and for the unexpired term of this contract, which shall be 22 years, the city agrees to pay the sum of $500 per annum quarterly in advance out of the general fund for the said 10 fire hydrants to be used for fire purposes, and for all additional fire hydrants that may be located from time to time the sum of $50 yearly for each hydrant during the term of this contract. All yearly rentals shall be paid quarterly in advance. All fire rentals shall terminate in 40 years from date of completion of plant. It is agreed that said water company shall have the right to issue upon said waterworks plant first mortgage bonds, not to exceed $8,000, for the purpose of aiding in the construction of said plant, and the city of Hubbard is to hold a second mortgage lien upon all property, both real and personal, belonging to said plant, to indemnify said city of full performance of this contract for the term of 40 years."

The specifications drawn by the waterworks company for the construction of the waterworks plant under the contract, which were introduced in evidence, provided that: "The plant will consist of a power house to be located on the bank of the lake about 1¾ miles west of Hubbard City, with boiler, feed pump, and appurtenances. A pumping plant located in pit in power house of one compound duplex steam pump of 500,000 gallons nominal capacity, with all appurtenances and connections. * * * There shall be one compound duplex engine, with a capacity for pumping 500,000 gallons of water in 24 hours, against a pressure of 150 pounds per square inch, with 75 pounds steam pressure at chest of engine," etc.

Appellant, among other things, alleged that said system of waterworks provided for in said contract was finished on or about the ____ day of August, A. D. 1900, according to the terms and provisions of said contract; that is to say, said system being furnished and equipped with one standard duplex pump of ample daily capacity, namely, daily capacity of 500,000 gallons, or about 21,000 gallons per hour; one boiler of ample power to operate said pump; one 40 horse power engine, pump and boiler house; one standpipe 12 feet in diameter by 100 feet high; 10 double nozzle standard fire hydrants; 1,000 feet of standard cast iron pipe, size 6 inches, with all valves, fittings, and appliances necessary to make the system complete in every respect. That for the purpose of complying with the terms and requirements of said contract to be performed by the said Hubbard City Waterworks Company, the standard duplex pump of 500,000 gallons daily capacity and one 40 horse power engine and boiler was originally installed as a part of the system of said waterworks, and was maintained and kept in use from the date same was installed until on or about the ____ day of July, A. D. 1904. That said pump, engine, and boiler were of ample daily capacity to furnish, and did furnish, a sufficient supply of water for domestic use, fire protection, and pressure sufficient for the purpose of fire protection. That on or about the ____ day of June, 1903, the defendant W. R. Bounds acquired and became the owner of all the capital stock of the said Hubbard City Waterworks Company, and that said Bounds continued said equipments, and maintained said waterworks system as it had theretofore been maintained, using said engine, boiler, and pump up to about the ____ day of July, A. D. 1904. That the defendants, W. R. Bounds and Hubbard City Waterworks Company, did, on or about the ____ day of July, 1904, and without the consent of plaintiff, disconnect from said waterworks system, and discontinue the use in connection therewith, said duplex pump, 40 horse power engine and boiler, and instead thereof substituted a small pump of not exceeding in capacity about 8,000 gallons per hour, and one 10 horse power gasoline engine to operate said pump. That said system as now equipped with...