Metropolitan Trust Co. v. Topeka Water Co.

• Decision Date: 10 September 1904
• Docket Number: 8,156.
• Citation: 132 F. 702
• Court: U.S. District Court — District of Kansas
• Parties: METROPOLITAN TRUST CO. v. TOPEKA WATER CO. et al.

132 F. 702

METROPOLITAN TRUST CO. v. TOPEKA WATER CO. et al.

No. 8,156.

United States Circuit Court, D. Kansas, First Division.

September 10, 1904

Mulvane & Gault, Barger & Hicks, Loomis, Blair & Scandrett W. F. Schoch, Gleed, Ware & Gleed, and Quinton & Quinton, for intervening petitioners.

Rossington Smith & West and John W. Newell, for complainants and defendants.

POLLOCK District Judge.

A decree has been entered in this suit directing a sale of the waterworks property involved to satisfy liens thereon. The sale has been made and reported to the court. During the pendency of the suit J. W. O'Neill was appointed receiver, who took charge of and has been operating the waterworks involved. During this receivership fires have occurred in the city of Topeka, causing large damage to owners of property destroyed by such fires. It is claimed by the intervening petitions, and so charged, that these fires resulted solely on account of the failure of the receiver of the water company to operate the works in compliance with the terms, conditions, and requirements of Ordinance No. 400 of the city of Topeka, under which the waterworks were constructed and operated, which ordinance, together with the acceptance thereof by the water company, constitutes the contract existing between the city and the water company. This ordinance, amount other things, provides as follows 'Sec. 10. Said company binds itself during the continuance of the contract which may be made under this ordinance to furnish at all times, for public and private use of said city and inhabitants thereof, a full and sufficient supply of good, clear, healthful, and wholesome water, well suited for domestic and manufacturing purposes.'

'Sec. 15. The following shall be the test of the capacity of the works: To discharge ten one-inch streams at the same time from any ten hydrants on the distribution pipes, with fifty feet of hose attached, to the height of one hundred feet, or maintain its equivalent in pressure at the nozzle or hydrant.

'Sec. 16. Any failure on the part of said company to comply with any of the provisions of this ordinance, either as to the amount of water or the quality of the same, or any failure to furnish sufficient supply of water at all times, excepting in case of unavoidable accident, said company shall forfeit its franchise, and this charter shall be null and void.'

For the purpose of ascertaining the amount and testing the legality of such claims against the receiver of the water company, and the priority of such claims over the mortgagee's liens upon the property, if such claims are found to be valid in law, the claimants have been permitted to file intervening petitions in this suit. The foreclosure decree contains the usual provision for payment of all such claims found to be prior in right to the mortgagee's liens out of the proceeds of the property sold, and the right to retake and resell the waterworks property if such payment be not made. The matter is now before the court for decision upon separate demurrers leveled against the intervening petitions.

The claim of liability against the receiver is twofold: First, the general claim of liability made by all the intervening petitioners, based upon the failure of the receiver to furnish water in such quantity and with such pressure as required by the terms of the ordinance above quoted; second, liability of the receiver to intervening petitioners Mulvane and the Parkhurst-Davis Mercantile Company for failure to furnish water in accordance with the terms of a special oral contract therein pleaded.

The question of the liability of a water company to respond in damages to a resident of a city, the owner of property destroyed by fire, on account of the failure of the water company to fulfill its contract with the city in furnishing and adequate supply of water and a stipulated pressure for the extinguishment of fires, has many times received the consideration of the courts of last resort in this country, and the almost universal holding is that there is no such privity of contract between the individual citizen, though a taxpayer who contributes to the fund disbursed by the city in the payment of hydrant rentals, and the water company, as will authorize any recovery for damages so sustained. Boston Safe Deposit & Trust Co. v. Salem Water Co. (C.C.) 94 F. 238; Mott v. Manufacturing Co., 48 Kan. 12, 28 P. 989, 15 L.R.A. 375, 30 Am.St.Rep. 267; Davis v. Waterworks Co., 54 Iowa, 59, 6 N.W. 126, 37 Am.Rep. 185; Becker v. Waterworks, 79 Iowa, 419, 44 N.W. 694, 18 Am.St.Rep. 377; Britton v. Waterworks Co., 81 Wis. 48, 51 N.W. 84, 29 Am.St.Rep. 856; Hayes v. City of Oshkosh, 33 Wis. 314, 14 Am.Rep. 760; Nickerson v. Hydraulic Co., 46 Conn. 24, 33 Am.Rep. 1; Eaton v. Waterworks Co., 37 Neb. 546, 56 N.W. 201, 21 L.R.A. 653, 40 Am.St.Rep. 510; Beck v. Water Company (Pa.) 11 A. 300; Phoenix Ins. Co. v. Trenton Water Co., 42 Mo.App. 118; Howsmon v. Water Company, 119 Mo. 304, 24 S.W.

784, 23 L.R.A. 146, 41 Am.St.Rep. 654; Fitch v. Water Co. (Ind. Sup.) 37 N.E. 982, 47 Am.St.Rep. 258; Foster v. Water Co., 3 Lea, 42; Ferris v. Water Co., 16 Nev. 44, 40 Am.Rep. 485; Fowler v. Waterworks Co., 83 Ga. 219, 9 S.E. 673, 20 Am.St.Rep. 313; Bush v. Water Co. (Idaho) 43 P. 69; Wainwright v. Water Co., 78 Hun, 146, 28 N.Y.Supp. 987; House v. Waterworks Co. (Tex. Sup.) 31 S.W. 179, 28 L.R.A. 532; Waterworks Co. v. Brownless, 10 Ohio Cir.Ct.R. 620.

The same conclusion has been reached by the Supreme Court of this state in a case where the water company, by virtue of the terms of its contract with the city, expressly agreed it should be liable for such damages. Mott v. Manufacturing Co., supra.

It has been universally held that a city owning its own waterworks cannot be held liable in an action for damages for failure to furnish sufficient water supply to extinguish fire. 2 Dill.Mun.Corp. 975; Fowler v. Waterworks Co., 83 Ga. 222, 9 S.E. 673, 20 Am.St.Rep. 313; Wainwright v. Water Co., 78 Hun, 146, 28 N.Y.Supp. 978; Tainter v. City of Worcester, 123 Mass. 311, 25 Am.Rep. 90; Vanhorn v. City of Des Moines, 63 Iowa, 447, 19 N.W. 293, 50 Am.Rep. 750: Hayes v. City of Oshkosh, 33 Wis. 314, 14 Am.Rep. 760; Mendel v. Wheeling, 28 W.Va. 233, 57 Am.Rep. 665; Wheeler v. Cincinnati, 19 Ohio St. 19, 2 Am.Rep. 368; Black v. Columbia, 19 S.C. 412, 45 Am.Rep. 785; Sievers v. San Francisco, 115 Cal. 654, 47 P. 687, 56 Am.St.Rep. 153; Ukiah v. Ukiah Water Co. (Cal.) 75 P. 773, 64 L.R.A. 231. A different rule of liability has been laid down in Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky. 340, 12 S.W. 554, 13 S.W. 249, 7 L.R.A. 77, 25 Am.St.Rep. 536, and Gorrell v. Greensboro Water Co. (N.C.) 32 S.E. 720, 46 L.R.A. 513, 70 Am.St.Rep. 598, and perhaps other cases, which cases are not wanting in plausibility of argument for their support.

However the exact question has so often received the consideration of courts of the highest standing throughout the country, and the conclusion reached has been so uniformly against the liability contended for by the intervening petitioners, that the doctrine of nonliability in such case must be received as the settled law. A city contracting for a supply of water acts in its private, as contradistinguished from its public or governmental, capacity, and as there is in this case no privity of contract between the...