Jackson v. City of Ellendale
| Decision Date | 18 December 1894 |
| Citation | 61 N.W. 1030,4 N.D. 478 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Dickey County; Lauder, J.
Application by Frederick H. Jackson for a peremptory writ of mandamus to compel the City of Ellendale to repair the service pipe connecting the city water main with his premises. From an order denying peremptory writ, plaintiff appeals.
Affirmed.
George W. Parkes, for appellant.
A. D Flemington, for respondent.
The judgment appealed from denied plaintiff's application for a peremptory writ of mandamus. An alternative writ was issued. To this writ defendant interposed an answer. The proceeding was tried, and the court made its findings of fact and conclusions of law. Upon them the judgment appealed from rests. We will first consider whether these findings of fact so far as they are unchallenged, warrant the judgment. The unchallenged facts which they embody are substantially the following: The defendant, the City of Ellendale, constructed a system of water works within its corporate limits for the benefit of its citizens. This system consisted of an artesian well and water mains laid in its streets. The construction of lateral service pipes was not a part of this system. These were to be constructed at the expense of the persons who desired to make connections with such mains. It was provided by ordinance that, when any person desired to connect the water main with his premises, he should file a petition for that purpose, stating the number of feet, kind and size of the pipe he desired to lay down in making the connection, and also stating the total cost thereof for work and materials; and it was further provided that he should pay the city clerk a sufficient sum of money to pay for such work and materials. Such ordinance further declared that no one should use water from this system without first paying "all costs and expense of furnishing and putting in the pipe to connect the water main with his premises." The plaintiff paid his water rates in full to November 1, 1894, On the 18th of November, 1893, plaintiff's service pipe broke in the street, a short distance from the main pipe. Plaintiff was requested by the city to pay or bear the expense of repairing such break. He refused to do either. Thereupon his connection with the water main was severed by the city.
This proceeding was instituted to compel the city and its officers to restore such connection. We have neither statutory provision nor ordinance to aid us in the settlement of this case. Upon the vital points, we are left entirely to general principles. In the first place, there is no express declaration in any ordinance as to the ownership of these service pipes after they are constructed. Neither is there any legislation on the subject. But it is provided in the...
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