Mulrooney v. Obear

• Decision Date: 09 January 1903
• Citation: 171 Mo. 613,71 S.W. 1019
• Parties: MULROONEY v. OBEAR et al.
• Court: Missouri Supreme Court

71 S.W. 1019

171 Mo. 613

MULROONEY v. OBEAR et al.

Supreme Court of Missouri, Division No. 2.

January 9, 1903.

DEEDS—PROPERTY CONVEYED—WATER PIPES —INJUNCTION.

1. A realty corporation platted an addition to a city, and, to induce the sale of lots, laid water pipes in the streets, which, under license from the city, were connected with the city water mains, and put in a meter at the point of junction. The corporation conveyed the several lots, "together with all rights, privileges, immunities, and appurtenances," to the several purchasers, by general warranty deeds. By mutual understanding the water tax charged by the city for the supply for the addition was distributed among the several householders, and collected through a voluntary association of the citizens, and paid to the city. Held, that the conveyance of the lots, with appurtenances, by the corporation, did not include the water pipes in the streets, but only the right to obtain water through such pipes at reasonable rates.

2. The meter and pipes were personalty, and title thereto passed by bill of sale from the corporation to a third party.

3. Where the owner of the meter and pipes is willing to furnish plaintiff with water at a reasonable rate, and plaintiff refuses to pay such rate, he is not entitled to an injunction restraining such owner from shutting off the water.

Appeal from circuit court, St. Louis county; Rudolph Hirzel, Judge.

Bill by Thomas Mulrooney against Frank Obear and George Deavers. From a judgment dissolving a temporary injunction, plaintiff appeals. Transferred from the St. Louis court of appeals on dissent. Affirmed.

Jno. R. Warfield and F. A. Heidorn, for appellant. Richard A. Jones, Chas. R. Crouch, and Zach J. Mitchell, for respondents.

GANTT, J.

A temporary injunction was granted in this case by the probate judge of St. Louis county during the temporary absence of the circuit judge. Afterwards, on a full hearing, Judge Hirzel dissolved the injunction, and from that judgment plaintiff appealed. The appeal was certified to the St. Louis court of appeals, and, owing to a dissent of one of the judges, the cause has been transferred to this court. This proceeding was begun June 22, 1897, and its purpose was to obtain a perpetual injunction against defendants, restraining them from discontinuing or shutting off plaintiff's water service. Defendant Deavers is a mere nominal party; being the agent of Obear, his codefendant. The petition, in substance, states the following facts: In September the Hodiamont Realty Improvement Company, a corporation organized and existing under the laws of this state, platted a subdivision of land in St. Louis county, immediately west of and adjoining the city of St. Louis, and named it "Hodiamont," and recorded the plat. To better enable it to sell its lots. the said realty company obtained permission of the road overseer, and laid a water supply pipe in a public road known as "Maple Avenue," and, by permission of the city authorities of St. Louis, connected said pipe with the city waterworks, and put in a large water meter at the point of connection, just inside the city limits. In selling off its lots, it reserved certain strips of land as alleyways, and in these alleys it laid service water pipes, which it connected with its supply pipe in Maple avenue, and also constructed sewers, and made the necessary connections with the water system. After this water system had been laid. it constructed a house on parts of lots 96 and 97 in Hodiamont, and sold and conveyed said house, and the ground on which it was erected, to the plaintiff, Mulrooney, "together with all rights, privileges, immunities, and appurtenances," by general warranty deed. The premises were afterwards connected with the water system, and plaintiff received his water supply from the city waterworks. Other lots were sold, and the buildings connected with the service pipes, and water supplied from the city waterworks. In 1893 the company, having disposed of all its lots, wound up its affairs, and formally relinquished its charter. Before doing so, however, it sold to defendant Obear, who was one of its incorporators and stockholders, the water pipes and meter, and all appurtenances, by written bill of sale. The city charged $165 for six months' supply of water to the subdivision, and, by a mutual understanding, this amount was distributed among the several householders in the subdivision, and it was collected through a voluntary association of the citizens, and paid to the city. This course was pursued until June, 1897, when Obear, the defendant, asserted his right to control the pipes; and in a contest between him and the citizens the city water commissioner recognized Obear as the owner, and issued the license to him, and he paid the tax. Thereupon he assessed the tax on the citizens of Hodiamont at the same rate as that charged by the city. The plaintiff, Mulrooney, refused to recognize Obear's right, and refused to pay his water tax; and, Obear having threatened to shut off his water unless he paid, Mulrooney brought this suit to enjoin him from so doing. In his bill he alleges that Obear and Deavers have no rights in said water meter, sewer, or water pipes, or any of them, and have no right to control or manage the same, as against plaintiff and the other property owners of the subdivision; that his threatened interference will work irreparable damage to plaintiff, and other property owners, and they have no adequate remedy at law. Obear, in his answer, pleaded his ownership of the water pipes and meter, and his right to manage the same and charge for the water. He alleged that his charges were reasonable, being the same as those imposed by the city. In his reply, plaintiff denied Obear's purchase and title to the meter and pipes, and...