Mendei & Co. v. City of Wheeling

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

28 W.Va. 233

Mendei & Co. v. City Of Wheeling.

Supreme Court of West Virginia, Wheeling

July 3, 1886

Submitted June 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 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 "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 water-works 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 "profit" 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 fire 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 damages for the loss.

R. White and G. R. E. Gilchrist for plaintiffs in error.

Caldwell & Caldwell for defendant in error.

JOHNSON PRESIDENT:

A fire originated in the plaintiffs' furniture-factory on Eoff 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 good order and repair, and that by reason

of 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 filled 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 care lessness 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 of certain [28 W.Va. 236] Page 237

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 Eoff 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 Eoff 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 Eoff 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 of 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 of said defendant as aforesaid, damaged to the amount of $20,000.00 And hence they sue, &c."

The fifth count 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 Eoff 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; which said factory, furniture, lumber and tools were the property of the plaintiffs, and of great value, to-wit, of the value of $20,000.00, of all which the defendant had notice. And the plaintiffs further aver, that on the day and year last [28 W.Va. 238] Page 239

and would not pass in and through said pipes and especially said pipe on Eoff street as aforesaid for the purposes aforesaid. And the plaintiffs further aver, that on the day and year aforesaid a fire broke out in said factory without the fault or knowledge of the plaintiffs, or either of them, and because of the want of water in said pipe of said defendant on Eoff street aforesaid, as aforesaid the said fire spread with force and violence in, upon and against said factory and said property therein contained, and damaged, injured, consumed and destroyed the same to the damage, by reason of the failure and negligence of the defendant as aforesaid, of the plaintiffs $20,000.00; and hence they sue, &c."

The only question submitted for our decision is: Under the facts stated is the city of Wheeling liable for the damage caused to the plaintiffs by the burning of their factory? It is insisted by the counsel for the plaintiffs in error, that the plaintiffs having complied with the requirements of the city by paying at the rates established by the city for water to be furnished by it for use in their factory including water to extinguish fire, they had a right to demand of the city that such water should be furnished, and it was the duty of the city to so furnish the water, and its negligence in failing to provide and keep in order the means, by which the water could be furnished at the time needed, renders it liable for the damages resulting from such negligence; that, when any person has the right to demand the exercise of a public function, and there is an officer or set of officers authorized to exercise that function, then the right and the authority give rise to the duty. (Carr v. Northern Liberties, 35 Pa. St. 380; Sussex v. Strader, 18 N. J. Law 108.) All of the counts in the declaration being founded on the negligence of the city to supply water to extinguish the fire, the question is...