Mann v. City of Jerome

• Decision Date: 22 April 1968
• Docket Number: No. 10031,10031
• Citation: 439 P.2d 928,92 Idaho 194
• Parties: F. R. MANN, Plaintiff-Appellant, v. CITY OF JEROME, a Municipal Corporation, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 928

439 P.2d 928

92 Idaho 194

F. R. MANN, Plaintiff-Appellant, v. CITY OF JEROME, a Municipal Corporation, Defendant-Respondent.

No. 10031.

Supreme Court of Idaho.

April 22, 1968.

Laurence B. Quinn (since deceased), and Edward Babcock, and Balleisen & Galley, Twin Falls, for appellant.

Richard H. Seeley and F. M. Rettig, Jerome, for respondent.

TAYLOR, Justice.

Plaintiff (appellant), a real estate developer, owned a tract of land adjoining the defendant (respondent) City of Jerome. A part of this land, which was annexed to the city, was platted by plaintiff in 1955 as F. R. Mann Subdivision No. 2, for the purpose of converting the property to residential use and the selling of individual lots therein. The price of the individual lots was fixed by plaintiff and-among other things-was based upon the cost of installing water lines, and the price the real estate market would support.

During approximately two years after platting no lots were sold and plaintiff, being in doubt as to whether he would receive a fair return on his investment, decided to vacate the plat. In February, 1957, in a conversation with the mayor of the city, plaintiff was advised by the mayor that he might be able to recoup part of the cost of the proposed water lines in the subdivision through the application of a recently passed ordinance. The ordinance referred to, ordinance 309, contained rule 17 as follows:

'Extension, as contemplated in these rules, is as follows:

'(a) A branch from or continuation of an existing main or service pipe, or both, to serve new business;

'(b) The changing of any main or service now installed to meet the consumer's requirements;

'(c) Any increase of capacity of any existing extension. It may consist of mains, service pipes, meters, connections and other materials; provided, however, extensions within the meaning of this rule shall not include connection lines, pipes, taps and service lines on private property, which are required to be installed and maintained at the consumer's expense pursuant to rule 7 and all rules supplemental thereto.

'Whenever an applicant for service is not on an existing main, or a consumer's operations are not located upon a completed main of such capacity as to enable the city to furnish the service desired by the consumer, extensions from the nearest available main to the applicant's or consumer's place of operation will be made upon the following conditions:

'That the city shall not construct nor pay for the construction of water distribution lines or laterals or other extensions which are not shown and described in the maps, plans, and specifications concerning the system now on file in the office of the city clerk. Any such lines or laterals or other extensions when needed shall be constructed by the applicants for water service through or from the system, and at their expense, including but not limited to a reasonable charge by the city for city engineering, supervision and inspection, in accordance with specifications prescribed by the city engineer. Any such lines or laterals or other extensions upon their connection to the system shall become a part of the municipal water system owned, operated and maintained by the city. In case such lines or laterals or other extensions are so constructed or otherwise acquired, the applicants defraying the cost thereof shall be entitled in not to exceed that amount (without accruing interest thereon) to the repayment to them by the city of the tap or connection fees paid by the applicants, if any, to the city and of fifty per centum of the periodic service or use charges or rates paid thereby to the city for a period of time not to exceed ten years from the date of the city's approval of the plans, specifications and contract documents therefor, such period to be designated by the city prior to its approval of such construction or other acquisitions of such lines or laterals or other extensions.'

Plaintiff thereafter studied the ordinance himself and decided to continue with the project. He purchased materials for and constructed the water system in consultation with the city water superintendent. During the course of the construction the system was inspected by city personnel and the materials used were approved by the city engineer and water superintendent. The city council did not authorize the approval of materials, nor the inspection of the system, nor did it authorize or confirm the advice given plaintiff by the mayor. By action of the council the city accepted and assumed control and maintenance of the system December 1, 1959.

A number of lots were sold by plaintiff subsequent to installation of the water system. These lots were conveyed by warranty deeds which made no reference to ownership of the water lines or to rebates under rule 17. On some of the lots residences were built by the purchasers and on others residences had been built by plaintiff prior to sale. These lot owners are the users of water from the system and pay to the city the charges made for the water service. None of such owners has made application to the city for rebate of water service charges. Lots remaining in plaintiff's ownership are not served with city water nor is plaintiff charged therefor.

In 1961, plaintiff filed a claim with the city for repayment of his costs of installing the water system by means of payment to him of 50% of the service charges...