YOUMANS
District Judge.
This is
a suit by plaintiff against defendant for the value of water
alleged to have been furnished by the former to the latter
from January 1, 1908, to April 5, 1911. It has been submitted
to the court sitting as a jury. The subject-matter grows out
of a suit begun prior to January 1, 1908, and terminated in
April, 1911, which the city of Ft. Smith instituted against
the plaintiff to enforce an option to purchase the plant
reserved in the franchise granted by ordinance to
plaintiff's predecessor, March 31, 1884, being Ordinance
No. 35. That ordinance, with amendments thereto, appears in
Read & McDonough's Digest of the Ordinances of the City
of Ft. Smith as sections 1069 to 1103, both inclusive.
Section 1085 is as follows:
'Sec
1085. Right to Purchase.-- The city shall have the right to
purchase said waterworks and appurtenances at the expiration
of ten years from January 1, 1885, and at the expiration of
every five years thereafter, at their fair and equitable
value of the works, lands, buildings, machinery and
equipments; such value, in case the parties can not agree, to
be determined by arbitration, as provided by the state, or
if that method is not satisfactory, by the circuit court of
Sebastian county for the Fort Smith district, as other
questions of fact-- any delays in such proceedings not to
forfeit the right of the city to make such purchase, and any
incumbrance upon said works and property shall be subject to
the right of the city to purchase the same as herein
provided.'
On
February 22, 1887, the city council of the city of Ft. Smith
passed a resolution which appears in the Digest as section
1092, as follows:
'Sec.
1092. Extension of Contract and Right of Purchase--
Whereas, the Fort Smith Waterworks purpose, as set forth by
their letter addressed to the mayor and city council of
February 2, 1887, to increase the efficiency of their works
by putting up, at great expense, new machinery, with the
capacity to insure a sufficient supply of water for all
purposes, as required by the terms of Ordinance No. 35(a),
not only for the wants of the present inhabitants, but
sufficient to keep pace with the wants of our rapidly
increasing population. Therefore, be it resolved, that in
consideration of said additions and improvements the city
hereby waives the right of purchasing said waterworks, as
provided for in section 9 of said Ordinance 35, for the
full term of twenty years, from and after the completion of
said addition and improvements, as indicated in the letter
above referred to; provided, that the said improvements
shall be commenced at once and shall be completed on or
before the first day of October, A.D. 1887, or sooner if
practicable, unless prevented by high water. Resolution
February 22, 1887.'
Section 7 of the original ordinance appears in the Digest
as section 1081, and is as follows:
'Sec.
1081. Hydrants, Number and Kind.-- There shall be located
at such places (on the lines of mains as laid by said
grantees), as the city council may approve, not less than
fifty double-tipped, brass-mounted, anti-freezing fire
hydrants, with two and one-half inch nozzles for fire hose;
said hydrants to be furnished, erected and kept in repair
by said grantees, and for the use of each and every of
which fire hydrants, from and after the completion of said
waterworks and tests as herein provided, during the
continuance of this franchise, said city hereby agrees to
pay the said grantees, or their assigns, the sum of sixty
dollars per annum. The said grantees shall furnish and
erect additional hydrants when so ordered by the city
council, for the use of each and every additional hydrant,
from and after the time when they are ready to supply
water, notice thereof to be given in writing to the city
recorder, the city hereby agrees, during the continuance of
this franchise, to pay the sum of fifty dollars per annum;
all hydrant rental to be paid semiannually on the 15th day
of January and July of each year.'
Part of
section 9 of the original ordinance appears in the Digest as
section 1087, and is as follows:
'Sec.
1087. Right to Maintain and Operate the Same.-- At the
expiration of this franchise, if the city is not the owner
of said waterworks, the grantees shall continue to have the
right to maintain and operate the same, the city having the
right to continue the use of the fire hydrants upon such
terms as may be then agreed upon, or, if the parties do not
agree, then at the minimum rates for water actually
used.'
In
section 1088, being part of the original ordinance fixing
annual water rates, appears the following: 'City offices
and prisons included in hydrant rent.'
In
January, 1891, a supplementary contract was entered into by
plaintiff and defendant, which appears as section 1093 of the
Digest, and is as follows:
'Sec.
1093. Supplemental Contract-- Standpipe-- Hydrants and
Other Conditions.-- The board of public affairs of the city
of Forth Smith be and is hereby authorized to enter into a
contract with the Fort Smith Water Company to settle
existing difficulties between said city and company, in the
following terms: Contract between the city of Forth Smith
and the Fort Smith Water Company. It is hereby agreed by
and between the city of Fort Smith, Arkansas, party of the
first part, and the Fort Smith Water Company, party of the
second part, that the party of the second part shall put in
its plant for said city, a new set of pumps with a capacity
of not less than two and a half million gallons per day;
shall erect a stand pipe or water tower, at or near its
present reservoir; shall put a filter in said plant; shall
put in a twelve-inch supply main from the reservoir along
Lexington avenue to Little Rock avenue; thence along Little
Rock avenue to Thirteenth street; thence along Thirteenth
street to North C street; thence along North C street to
North Fourth street; a ten-inch main from South D. street
along Wheeler avenue to Carnall avenue; thence across
Carnall avenue to and along Garland avenue to South Sixth
street; thence along South Sixth street to Parker avenue;
thence along Parker avenue to South Fourth street; an
eight-inch main along South Fourth street from Parker
avenue to North C street; along South B street from
Lexington avenue to Little Rock avenue; thence along Little
Rock avenue to Eighteenth street, and thence along
Eighteenth street to North F street; a six-inch main along
North E street from Lexington avenue to South Eighteenth
street; thence along South Eighteenth street to Little Rock
avenue; on North Thirteenth street from North C street to
North J street; thence on North J street to North Twelfth
street; thence on North
Twelfth street to North I street; on North Tenth street
from North C street to North L street, and from South
Fourth on Rogers avenue to Towson avenue; a sixteen-inch
main from the present terminus of the force main near the
pumphouse to the reservoir or stand pipe, independent of
the present distribution pipes running to the reservoir and
to the city. The city shall, at the time of laying the
above mains, designate the places where city hydrants will
be placed when they shall be ordered, so that the water
company can put in specials to which said hydrants can
afterwards be attached. Said work is to be begun
immediately and be completed by September 1, next, any
delays by injunction or order of any court, unavoidable
accidents or delays from malicious interference, excepted.
All dead ends to be connected wherever practicable. When
the above work is completed, the party of the first part
will dismiss the action now pending between the parties
hereto in the Sebastian county circuit court for the Fort
Smith district of Sebastian county, Arkansas, until which
time said action shall stand continued. In consideration of
the performance by the parties hereto of the foregoing
agreement, it is further agreed that the said city may have
sufficient water without charge to fill properly
constructed sewer flush tanks to flush the sewers of said
city. The water to be taken from the mains of said water
company at points convenient and least expensive to the
city. All connections for this purpose to be made under the
direction of the water company (as other connections are
made) but at the expense of the city. Such flushing shall
be done twice in twenty-four hours, and oftener during the
prevalence of epidemics, upon the order of the board of
health of said city. In addition to the above specified
mains to be put in by said company on or before September
1st, next, upon which the city is not compelled to take
hydrants until it shall see fit, said water company shall
furnish one hundred hydrants, similar to those already in
use, on mains to be laid in such streets as the city shall
hereafter designate, for which the city shall pay a yearly
rental of only thirty dollars per hydrant, payable as the
other hydrant rentals, said hydrants to be supplied as
follows: The first twenty-five by January 1, 1892; the
second twenty-five by January 1, 1893; the third
twenty-five by January 1, 1894; and the remainder by
January 1, 1895. The city reserves the right to locate said
hydrants seven hundred and twenty feet apart, and if any
two be placed nearer together than seven hundred and twenty
feet, others may be placed enough more than seven hundred
and twenty feet apart to maintain the average distance of
seven hundred and twenty feet. This agreement shall
continue and be in force during the existence of the
franchise and
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