M BNDBL & Co. v. City Of Wheeling.

• Decision Date: 03 July 1886
• Citation: 28 W.Va. 233
• Parties: M BNDBL & Co. v. City of Wheeling.
• Court: West Virginia Supreme Court

28 W.Va. 233

M BNDBL & Co.

v.City of Wheeling.

Supreme Court of Appeals of West Virginia.

Submitted June 8, 188(5

Decided July 3, 1886.

1. The power to organize and regulate water-works in a city being in its nature legislative or judicial, a failure of the corporate authorities to exercise the power does not render the city liable for damages caused by such failure, (p. 246.)

2. In the absence of a charter accepted by the city compelling it to erect and regulate water-works it is discretionary with the municipal corporation, whether it will or will not erect them or cause them to be erected; or after such works have been erected, whether it will lay water-pipes in certain streets; or after having laid such pipes whether or not it will abandon or remove them, and leave such streets without pipes or suffer them to be filled with earth so or other substances; and such power being governmental and discretionary, the city is not liable for loss by fire caused by the negligence of its servants and agents in suffering any of its water-pipes to become filled with earth or gravel, so that they will not convey any water, (p. 246.)

3. Where the city owns its water-works and charges those, who are supplied with water, a certain annual 11 water-rent " for such supply, there is still by this fact no duty imposed on the city, from which a liability can be raised against the city for damages for loss of property by fire caused by the negligence of the agents and servants of the city in suffering the water-pipes to become useless, so that they will not supply water for the extinguishment of fire. From such facts no contract could be implied to keep up a supply of water, (p. 252.)

4. The city, which owns its water-works and charges the consumers of the water an annual water-rent, is no more liable to damage for loss by fire than a city, which does not own its waterworks but keeps a paid fire-department supported by general taxation. The city, which owns its water-works and charges a water-rent, does not in any proper sense receive a 11 profit M from such work, but it is a species of taxation for the legitimate purposes of the city-government, (p. 258.)

5. M, & Co. lost a factory by tire in the city of Wheeling; the city owned and operated its water-works and received water-rents from those supplied with water; M. & Co. were supplied with water and paid the charge; the property was lost, because the supply-pipe through the negligence of the agents of the city was suffered to be filled with mud, so that it would not supply any water; Held:

The city is not liable for damage for the loss. R, White and G. R. E. Gilchrist for pain tiffs in error.

Caldwell k Caldwell for defendant in error.

Johnson, President:

A fire originated in the plaintiffs' furniture-factory on Eoft street, in the city of Wheeling on March 26, 1881, and completely destroyed said factory. The plaintiffs brought an action on the case in the circuit court of Ohio county to recover damages against the city, on the ground that the city was bound to keep the water-pipes connected with the-waterworks of said city in goocl order and repair, arid that by rea son ol the carelessness and negligence of the city the water-pipe in Eoff street, to which water-pipes were connected leading into said factory, was out of repair and rilled with mud and filth, and no water could be had to extinguish the fire, and in consequence thereof the factory was burned. In the original declaration there were eight counts setting up in various modes, that the plaintiffs owned in said city a furniture-factory worth with stock on hand $20,000.00, and that the city of Wheeling owned the water-works in said city with all the supply pipes and furnished water to its citizens for profit to itself and was in duty bound to keep such works and pipes in good order and repair; and that pipes were laid into the said factory from the pipe on EofF street for the purpose of supplying it with water for general use and for the extinguishment of fire; that a fire broke out in said factory on March 26, 1881, without fault of the plaintiffs; that such fire could have been easily extinguished, if water from said pipes could have been obtained; but that through the carelessness and negligence of the city the pipe on Eoff street, which should have supplied the pipes leading into the factory, had been permitted to fill up with mud and filth, and in consequence thereof no water could or did flow through said pipes, and by reason of said carelessness and negligence of the city the plaintiffs' property was entirely destroyed by fire, to their damage $20,000.00.

The defendant demurred to the original declaration and each count thereof, which demurrer was sustained, and the plaintiffs filed an amended declaration containing eight counts, which were similar to the eight original counts. The defendant demurred to* the amended declaration and each count thereof which demurrer the court on January 22, 1883 sustained and gave costs against the plaintiffs. To this judgment the plaintiffs obtained a writ of error.

I will set out two of the counts in full, as specimen counts, showing a cause of action, if it can be found in any of them. The sixth count of the' original declaration is as follows:

"And for this also, that heretofore, to-wit, on March 26, 1881, and before that date, at the county aforesaid, the said defendant in its corporate capacity was the owner ot certain works in said city, known as * water-works, and ot certain pipes laid in said city in connection therewith, one of which pipes was then and there in Eoff street in said city, and the plaintiffs further aver that said defendant then and there, and before that time, in its corporate capacity did use said works and pipes for profit to itself in collecting water from the Ohio river and in distributing it through the pipes aforesaid. And the plaintiffs further aver, that it was then and there the duty of said defendant to keep and have said works and pipes in good and needful order and repair. And the plaintiffs further aver, that on the day and year last aforesaid, and for more than one year previous thereto, they owned in said city a certain factory situated adjacent to said Eoff street, in which, on the day and year aforesaid, there was contained valuable property and material of the plaintiffs, used and to be used in the prosecution ot their business as manufacturers of furniture and coffins and cases in said building, which said factory was then and there known as Mendel's factory, and which, including said property and material, was ot great value, to-wit, of the value of $20,000.00; of all which defendant had notice. And the plaintiffs further aver, that by and with the consent and agreement of said defendant pipes were laid from said defendant's pipe on Eoff street to the factory aforesaid of said plaintiffs for the purpose of furnishing said plaintiffs with all the water necessary for use in and about said building and factory. And the plaintiffs further aver, that for and in consideration of the sum of $100.00 paid by them to it said defendant had before said March 26, 1881, agreed with plaintiffs to furnish, tor and during the current year ending on April 1, 1881, from its said pipe on Eoff street aforesaid through said pipes connecting the same with said factory and building all the water, which said pipes were capable of carrying in and through them in any event necessary to be used therein and therefrom during said year in and about said factory or for its protection from fire. And the plaintiffs further aver, that there was then and there attached to one of said pipes an attachment to which a hose could at once be affixed, in case a fire broke out in said factory; all which was known to said defendant at 1.e me it so received the said sum. of money aforesaid. And the plaintiffs further aver, that on March 26, 1881, a fire broke out in said factory without their fault or neglect, or the fault or neglect of either of them, and that before the same had spread, and while it was in such condition as that it could have been easily controlled and extinguished, had such pipe, to which said attachment was affixed as aforesaid, and which then and there had a hose attached thereto, been supplied from said defendant's pipe on Eoft street with an ordinary supply of water, they, the plaintiffs, having then and there affixed a hose to said pipe upon their property aforesaid, sought to extinguish said fire and control the same by the use of water flowing through the same from said defendant's pipe on Eoft street; but the plaintiffs aver, that because and by reason of the carelessness and negligence of said defendant, the said water-works of said defendant and its said pipe on Eoft street were in such bad order and repair that no water would flow into said pipe to which said hose was attached, and that by reason thereof said fire could not then and there be controlled, managed or extinguished, and said property of said plaintiffs could not be protected therefrom, and that, because ot said carelessness and negligence of said defendant as aforesaid, said fire spread and injured, burned and consumed the said factory and property of the plaintiffs then and there; and therefore plaintiffs say that they were, by reason of said want of care, and neglect ot said defendant as aforesaid, damaged to the amount of $20,000.00. And hence they sue, &c."

The fifth court of the amended declaration is as follows:" And for this also, that heretofore, to-wit, on March 26, 1881, at the city and county aforesaid, the plaintiffs owned and possessed a certain building situated adjacent to Eoft street on the west side thereof, between Twelfth and Thirteenth streets in said city, known as " Mendel's Factory," together with a large amount of furniture therein of the value of $5,000.00; of lumber and material of the value of $3,-000.00; and of engines and tools of the value of $2,000.00;...