Kimball v. Northeast Harbor Water Co.

• Decision Date: 26 January 1911
• Citation: 107 Me. 467,78 A. 865
• Parties: KIMBALL v. NORTHEAST HARBOR WATER CO. et al.
• Court: Maine Supreme Court

78 A. 865

107 Me. 467

KIMBALL

v. NORTHEAST HARBOR WATER CO. et al.

Supreme Judicial Court of Maine.

Jan. 26, 1911.

Report from Supreme Judicial Court, Hancock County, at Law.

Bill by Loren E. Kimball against the Northeast Harbor Water Company and others.

Bill in equity brought by the plaintiff, who was the owner of the Kimball House, a summer hotel at Northeast Harbor, wherein it was alleged, among other things, that the defendant water company and its superintendent had threatened to discontinue the supply of water for use in the operation of the elevator in said hotel unless certain changes were made in the method of applying the water, and praying for an injunction against their discontinuing the supply of water as threatened. The defendants filed an answer with a demurrer therein inserted, and the plaintiff filed the usual replication. The cause was then heard on bill, answer, replication, and evidence, and at the conclusion of the testimony the case was reported to the law court for determination. Bill dismissed.

Argued before EMERY, C. J., and SAVAGE, PEABODY, SPEAR, CORNISH, and KING, JJ.

Hale & Hamlin, for plaintiff.

Deasy & Lynam, for defendants.

CORNISH, J. The Northeast Harbor Water Company was chartered by special act of the Legislature in 1883 "for the purpose of supplying the village of Northeast Harbor in the town of Mount Desert in Hancock county and the vicinity of said village, with pure water for domestic, sanitary and municipal purposes," and for said purposes was given the power to detain and take water from Hadlock lower pond in Mt. Desert and from any streams flowing out of the same. Priv. Laws 1883, c. 168. Under that charter, a water system was constructed in 1884, and has been in operation since, supplying water now to about 250 takers.

By Priv. Laws 1907, e. 187, additional powers and rights were conferred upon the company, and, to quote the words of the act, "in addition to the powers now possessed by it, it is hereby authorized and empowered * * * to supply water for shipping and for the development of power, to erect dams and other structures for the purpose," etc., and certain rights of flowage on Lower Hadlock pond were also granted.

The plaintiff is the owner of the Kimball House, a summer hotel at Northeast Harbor and one of the parties supplied by the defendant. In 1898 he installed in the hotel an elevator which has since been run by water power by direct pressure, the water being taken from an eight-inch main in the street through a four-inch pipe directly to the elevator. In December, 1908, the company notified the plaintiff that, in view of the effect during the preceding years upon the water pressure in the pipes of other consumers in the vicinity of the Kimball House, it would discontinue the supply for use in the operation of the elevator on and after April 1, 1909, unless certain changes were made in the method of applying the water by means of a tank, so as to obviate the difficulties experienced. The plaintiff made no reply to this communication. On March 16, 1909, the defendant by letter extended the time to June 1, 1909. But the plaintiff took no steps towards making the suggested change, and brought this bill in equity against the company and its superintendent asking for an injunction against their discontinuing the supply of water as threatened.

Two questions are raised:

First. The obligation of the company to furnish water under the facts of this case.

Second. The reasonableness of the company's requirements.

The first proposition has been argued only with reference to the additional act of 1907, which gave the company the right to supply water for the "development of power," and were that act under consideration, as in the eminent domain clause, serious doubts might arise under the decision of this court in Brown v. Gerald, 100 Me. 351, 61 Atl. 785, 70 L. R. A. 472, 109 Am. St. Rep. 526. We do not, however, deem it necessary in this case to consider the force or validity of that act. We think the language and spirit of the original charter are sufficiently broad to cover this case, for in that charter the company was empowered to supply water for all domestic purposes, and it requires no wrenching of terms to hold that the use of water for operating an elevator in a private dwelling or in a hotel comes within the term domestic purpose in its broad and liberal sense. For what purpose is this used, if not domestic? It certainly is neither a trade nor an industrial purpose, the power is not employed in manufacturing, or in producing any article for sale upon the market. "Domestic" is used as the direct antithesis of commercial or industrial. The word itself, in its derivation from "domus" a house, suggests its inherent purport. It is defined as "belonging to the home or household, concerning or relating to the home or family" (Standard Dic.), or, as Webster has it, "Of or pertaining to one's house or home, or one's household or family." As water is furnished by a public service corporation to private consumers, it may be used in various ways, but the purpose, whatever the method, comes within these definitions of domestic. Thus it may be used for drinking, cooking, bathing, washing, toilet, heating, or sprinkling. It is not the manner of the use, but its purpose, which is the determining test. Is it to be used for the necessity, cleanliness, health, comfort, or convenience of the house and its appurtenances or of the household? If so, it is a domestic purpose. And it can make no difference whether it be a private home or a hotel, which in this sense is but a larger household, a temporary home for a greater number of people. An elevator in a private house is a convenience; in a hotel is almost, if not quite, a necessity. It promotes the personal comfort of the proprietor, his family, servants, and guests. It is a domestic labor-saving device and the use of water in propelling such elevator would certainly seem to be embraced in the term domestic. This term has been enlarging as the wants and the needs of people have increased. Drinking, bathing, and washing must at first have marked the limit;...