Kuehn v. Village of Mahtomedi
| Decision Date | 17 May 1940 |
| Docket Number | No. 32398.,No. 32429.,32398.,32429. |
| Citation | 292 N.W. 187,207 Minn. 518 |
| Parties | KUEHN v. VILLAGE OF MAHTOMEDI. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Washington County; Alfred P. Stolberg, Judge.
Action by A. E. Kuehn against the Village of Mahtomedi for recovery of damages on three causes of action for the alleged wrongful entry into plaintiff's supposedly exclusive field in operating a water supply system and for injury to plaintiff's water system. The defendant's general demurrer to the first two causes of action was sustained, but the general demurrer to the third was overruled, and the plaintiff appeals, and the defendant cross-appeals.
Order, in so far as it sustained demurrers to first two causes of action, affirmed, and, in so far as it overruled demurrer as to third cause of action, reversed.
Wm. T. Johnson, of Stillwater, representing village.
Conrad R. Shefveland and Francis M. Smith, both of St. Paul, representing A. E. Kuehn.
Plaintiff, seeking damages from defendant, predicates his right of recovery upon three causes of action. Defendant's general demurrer to each thereof was sustained as to the first and second causes, but overruled as to the third. Plaintiff appeals from the order insofar as the first and second causes are concerned, defendant from that part overruling its demurrer. The appeals have been consolidated and jointly briefed and argued here. We shall dispose of them in the order mentioned.
The facts general to all three causes are these: Plaintiff now is, and over a period extending back prior to 1927 was, the owner of "a water plant comprised of wells, pumps, tanks, mains, and pipes of the character incident and necessary for use in supplying private customers with water" in a described area in Lincoln township, Washington county. In 1931 defendant village was organized as a municipal corporation out of a portion of the mentioned township. At that time plaintiff's system was operating without competition by anyone. In 1933 defendant, with full knowledge of the existence and operation of plaintiff's system, laid out and constructed its own water supply system.
The first cause has to do with defendant's alleged wrongful entry into plaintiff's supposed exclusive field so as thereby to deprive him of his customers since its "distribution pipes run parallel to" those of plaintiff "and are designed to serve the same persons as the then customers of the plaintiff" within the village area. Because thereof he wants $32,000 in damages.
The second cause relates to an area referred to as "subdivision of blocks two (2) and three (3), East Shore Park," as shown by a plat. By this plat there was reserved to the owner and his successors in title and interest "the exclusive right to lay and maintain water pipes and erect tanks in any and all of" the streets, avenues and alleys so dedicated. The village constructed water system also invaded this supposed exclusive area of plaintiff, and as a consequence his business was much hurt because former customers thereafter refused to purchase water from him but became customers and users of defendant's water supply system. For this he wants $10,000 as damages.
The third cause avers that defendant "in the progress" of its work of laying out and establishing its water supply system "wrongfully, negligently, and carelessly prosecuted" the same "so as to break, pull apart, and loosen the pipes of the plaintiff and immediately upon completion of its installation covered all of said pipes including the pipes of the plaintiff." Because of such "wrongful, negligent, and careless acts," large quantities of water "leaked from the plaintiff's mains and pipes," thereby making it impossible for him to supply his customers with their accustomed service. For this he wants additional damages in the amount of $15,000. So the damages wanted amount to the very substantial sum of $57,000.
Plaintiff's theory in respect to the first cause is that under 2 Mason Minn.St.1927, § 7536, by the mere establishment of his water system he secured a franchise claimed to be perpetual and exclusive; that defendant's construction of a separate system within its territorial area wrongfully deprived him of his franchise rights; that even if under the mentioned statute no such franchise came into being, yet, inasmuch as his system had been established over a period of many years prior to defendant's entry into the picture, "long acquiescence by the municipal authority" of the township, defendant's "predecessor," he had acquired such right of exclusive franchise. In respect to the second cause, the property dedicated being subject to the quoted reservations and plaintiff having succeeded to the title of the original owner, defendant thereby became "bound by rights which plaintiff [had so] acquired" and that these are exclusive.
1. We consider first plaintiff's contention that he, "by entering upon the highways and streets of the township with his water mains, [thereby] obtained a statutory franchise." The statute, § 7536, seems perfectly plain. The right granted thereby to the use of public highways is limited to "any water power, telegraph, telephone, pneumatic tube, or * * * light, heat or power company." It is thus apparent that the types of businesses granted permission to enjoy the privilege of using public highways are as there specifically listed and limited. Plaintiff, if within the act at all, must come within the classification of "water power" companies. He so asserts but beyond that furnishes no argument and assigns no sound reason for so stretching these words as to include plaintiff's enterprise within that classification. We think the term "water power" as used in the statute is plainly limited to power derived from the gravity of water as its weight or momentum is applied to the driving of mechanical equipment. Its most common use is the manufacture of electricity for heat light, and other similar purposes. But we need not speculate as to legislative intention, for the history of this legislation furnishes abundant proof that these words were advisedly used to convey no other meaning than that signified by the words themselves. The original enactment is found in L.1860, c. XII, § 1, which provided that: "Any telegraph company incorporated or organized under the laws of this state, shall have full power and right to use the public roads and highways * * * on the line of their route, * * *."
Thus the law remained until the enactment of Gen.L.1881, c. 73, when telephone companies were added to the privileged class. By L.1899, c. 51, telephone companies were required to obtain the consent of the municipality for the use of its streets. By L.1901, c. 301, the first reference to the word "water" came into this picture. That chapter provided [§ 1]: "Any person, persons or corporations now or hereafter organized for the purpose of improving, developing or using water power for heat, light, or power purposes, or any corporation now or hereafter organized for the purpose of developing, generating or using electric energy or currents for heat, light or power purposes, otherwise than by water power, is hereby authorized to acquire the right of way over, through, under or across any lands needed for the erection of poles or posts," etc. Under R.L.1905, § 2927, all the mentioned enactments relating to the use of highways by utilities were combined into what is now 2 Mason Minn. St.1927, § 7536. It therefore seems perfectly clear that the legislature has never included or intended to include those who furnish or supply water for domestic and ordinary municipal use. Water supply systems in most of the state's urban communities are publicly owned and operated. Such service partakes of a governmental function rather than that of furnishing water for power purposes, usually furnished by private capital for pecuniary gain. The former has to do with health, cleanliness fire...
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