Libby v. York Shore Water Co.

• Decision Date: 05 February 1926
• Citation: 131 A. 862
• Parties: LIBBY et al. v. YORK SHORE WATER CO.
• Court: Maine Supreme Court

131 A. 862

LIBBY et al.

v. YORK SHORE WATER CO.

Supreme Judicial Court of Maine.

Feb. 5, 1926.

On Motion from Supreme Judicial Court, York County, at Law.

Petition by Fred M. Libby and others for mandamus against the York Shore Water Company. Motion to dismiss was made, and question whether alternative writ was discretionally issuable was reserved for the law court. Report discharged.

Argued before WILSON, C. J., and PHILBROOK, DUNN, MORRILL, and BASSETT, JJ.

Stewart & Hawkes, of York Village, for petitioners.

Frank D. Marshall and Charles J. Nichols, both of Portland, for defendant.

DUNN, J. The overt phase of this case is that of nonconformity to statutable procedure in mandamus proceedings. This aspect will be seen against the history and the rule.

These petitioners own certain land in the town of York. They are desirous that their property have the use of water. The public utility whose main is beneath the traveled portion of the adjacent highway has refused to provide that use.

Attention by the Public Utilities Commission never has been sought. No statute expressly confers jurisdiction on that commission in events of this nature, but its power to deal with such situations would seem impliedly within the area of legislative meaning. R. S. c. 55. The decision in Robbing v. Railway Co., 100 Me. 496, 62 A. 136, 1 L. R. A. (N. S.) 963, that mandamus lies immediately by an individual to make a public service corporation supply water to him antedates the utilities law. So much by way of passing remark for that.

On the day following the denial by the respondent company, the present petition for mandamus was filed, in purpose to compel the furnishing of water.

The respondent moved the dismissal of the petition. This done, and without the justice ruling, the counsel on the one side and the other stipulated facts agreed into the record, and suggested reserving for the law court whether the alternative be a writ discretionally issuable on the grounds thus shown. That suggestion found favor.

It is personally to an individual member of this court, distinguishably from him presiding as justice in term time, that a petition for mandamus should be addressed. R. S. c. 107, § 17; Hamlin v. Higgins, 102 Me. 510, 67 A. 625.

Once the petition is presented, the justice fixes the time and place for hearing thereof. Limitary provisions affect neither these things nor the length of the previous notice which others concerned shall have, but corrective means will reach a discretion unmistakably abused. Hearing the petition has to do with the granting or the denying of the alternative writ, a writ which determines nothing in favor of the petitioner or against the respondent, but has resemblance to an interlocutory order to show cause, which is obeyed by answering, the answer being styled the return.

The return, if it does not show a compliance with the mandate or command of the alternative writ, must either deny the facts which the writ sets out, or state other facts sufficient in law to defeat the petitioner's...