Merrimack River Sav. Bank v. City of Lowell

• Decision Date: 06 January 1891
• Citation: 152 Mass. 556,26 N.E. 97
• Parties: MERRIMACK RIVER SAV. BANK v. CITY OF LOWELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

152 Mass. 556

26 N.E. 97

MERRIMACK RIVER SAV. BANK v. CITY OF LOWELL.

Supreme Judicial Court of Massachusetts, Middlesex.

January 6, 1891

COUNSEL

G.F. Richardson and John Davis, for plaintiff.

Larkin T. Trull and Fred M. Wier, for defendant.

OPINION

KNOWLTON J.

The most important question in this case is whether a city or town which is authorized by statute to furnish water to its inhabitants, to be paid for by them, and which has received from a householder payment in advance for water to be furnished, and has arbitrarily cut off his supply, can be held liable, in damages, in an action at law. By the statute of 1855, c. 435, and by subsequent statutes, the city of Lowell is authorized to take water from the Merrimack river to take and hold lands, lay down and maintain aqueducts and pipes, from the Merrimack river into and about the city, and to do all other acts necessary to furnish the inhabitants of the city with water in their houses and elsewhere, with the right to "regulate the use of said water, and to establish, receive, and collect the prices or rates to be paid therefor." The city has acted under this statute, and is supplying the people with water in accordance with its provisions. The plaintiff paid the established rates for a supply of water at its house from April 1, 1887, to April 1, 1888, but, on September 3, 1887 the water for the next preceding year not having been paid for, the city shut off the water from the plaintiff's premises. It is argued that, after payment for the water, the plaintiff had only a revocable license to use it, and that the city violated no legal right in shutting it off. It is also suggested that the city is merely performing a public service, and that the rates paid for water by individuals are special taxes, and that there is no contract or obligation on the part of the city to furnish water after a payment, other than the public duty which it owes to all its inhabitants and that the plaintiff's remedy, if any, is by a writ of mandamus, to compel the performance of this duty. It is true that water supplied by cities and towns to their inhabitants, under our statutes, is, in a broad sense, furnished for public use, and that the constitutional authority to tax the people for this purpose is found in this fact. But while the right rests upon the general benefit to the community from having water for uses in which everybody has an interest, and from the existence of a supply accessible to the whole public, from which every individual may obtain water for his private use, cities and towns may, under statutes authorizing them to furnish water to their inhabitants, make reasonable contracts with individuals to supply them with water for a price to be paid. These contracts should not be inconsistent with the performance by the municipality of its general public duty, nor exceed the reasonable limits which may be reached in the performance of that duty. The general expenses of providing a supply of water, and the general benefits to the municipality from the uses of water which are strictly public, are paid for by general taxation of the inhabitants. There are no special benefits for which special assessments are made growing out of the introduction of the water. Special payments are made by individuals only when they are supplied with water at their request; and then only for what is furnished, and for the time that it is furnished. While these may be called special assessments...