New Orleansco v. Louisiana Sugar Refining Co

• Decision Date: 19 March 1888
• Docket Number: WATER-WORKS
• Citation: 31 L.Ed. 607,8 S.Ct. 741,125 U.S. 18
• Parties: NEW ORLEANSCO. v. LOUISIANA SUGAR REFINING CO. et al
• Court: U.S. Supreme Court

125 U.S. 18

8 S.Ct. 741

31 L.Ed. 607

NEW ORLEANS WATER-WORKS CO. v. LOUISIANA SUGAR REFINING CO. et al.

March 19, 1888.

This was a petition, filed March 30, 1883, in the civil district court for the parish of New Orleans, by the New Orleans Water-Works Company against the Louisiana Sugar Refining Company and the city of New Orleans, to restrain the laying of water pipes from the factory of the Louisiana Suger Refining Company through the streets and thorough- fares of the city to the Mississippi river. The allegations of the petition are in substance as follows: That the legislature of Louisiana, by an act of April 1, 1833, chartering the Commercial Bank of New Orleans, declared the chief object of that corporation to be 'the conveying of water from the river into the city of New Orleans and its faubourgs, and into the houses of its inhabitants;' and enacted that it should 'have forever the exclusive privilege, from and after the passing of this act, of supplying the city and inhabitants of New Orleans and its faubourgs with water from the river Mississippi, by means of pipes or conduits,' and the right to construct the necessary works for that purpose; and provided that its works, rights, and privileges might be purchased by the city of New Orleans at any time after 35 years from the passage of the act. That in 1869 the city of New Orleans purchased the same accordingly, and took charge of and used the works for the purpose of supplying the city and its inhabitants with water. That the act of the legislature of Louisiana of March 31, 1877, incorporating the plaintiff, contained the following provisions: Sec. 2. 'That immediately after the organization of the said water-works company, as hereinafter provided, it shall be required to issue to the city of New Orleans stock to the amount of six hundred and six thousand six hundred dollars, as full paid, and not subject to assessment; and in addition thereto, one similar share for every one hundred dollars of water-works bonds which said city may have taken up heretofore and extinguished by payment, exchange, or otherwise; and that the residue of said capital stock shall be reserved for the benefit of all holders of water-works bonds, to the extent of the amount now outstanding, who may elect to avail themselves of the provisions of this act.' Sec. 5. 'That the said water-works company shall own and possess the privileges acquired by the city of New Orleans from the Commercial Bank; that it shall have for fifty years from the passage of this act the exclusive privilege of supplying the city of New Orleans and its inhabitants with water from the Mississippi river, or any other stream or river, by means of pipes and conduits, and for erecting or constructing any necessary works or engines, or machines for that purpose;' and have authority 'to lay and place any number of conduits or pipes or aqueducts, and to cleanse and repair the same, through or over any of the lands or streets of the city of New Orleans: provided, the same shall not be an obstruction to commerce or free circulation.' Sec. 11. 'That the city of New Orleans shall be allowed to use water from the pipes and plugs of said company now laid, or hereafter to be laid, free of any charge, for the extinguishment of fires, cleansing of the streets, and for the use of all public buildings, public markets, and charitable institutions.' Sec. 17. That 'at the expiration of fifty years from the organization of the company, the city shall have the right to buy the works, conduits, pipes, etc., of the company, at a valuation to be fixed by five experts;' 'but should the city neglect or refuse to purchase said works, etc., as above provided, the charter of the company shall be ipso facto extended for fifty years longer, but without any exclusive privilege or right to supply water, according to the provisions of the charter.' Sec. 18. 'That nothing in this act shall be so construed as to prevent the city council from granting to any person or persons, contiguous to the river, the privilege of laying pipes to the river, exclusively for his own or their own use.' That on April 9, 1878, the city transferred the water-works and franchises aforesaid to the plaintiff. That 'since said transfer the petitioner has faithfully discharged the trust imposed on it, and complied with all its obligations; that, by virtue of the aforesaid exclusive privilege thus conferred upon it by the aforesaid charters, statutes, and acts of transfer, the city of New Orleans cannot grant to any one the privilege of laying pipes to the river to convey water within her limits, without a flagrant violation of the aforesaid contracts and a breach of warranty, with the exception, however, of such privilege or facility as said city may think it expedient to extend riparian owners of property lying contiguous to said river.'

That the city of New Orleans granted permission to the Louisiana Sugar Rei ning Company, a corporation domiciled in the parish of Orleans, to lay pipes from its factory to the Mississippi river, as appeared by the following ordinance, adopted by the city council on March 13, and approved by the mayor on March 15, 1883: 'An ordinance providing for the erection of all necessary machinery, boilers, and engines, and laying of water and sewerage pipes in connection with the Louisiana Sugar Refining Company's works. Be it ordained that permission be, and is hereby, granted to the Louisiana Sugar Refining Company to erect all necessary machinery, boilers, and engines in their factory in course of construction in the square bounded by Front, Clay, Bienville and Custom-House streets, and to lay water and sewerage pipes from said factory to the Mississippi river, according to lines and grades for same to be furnished by the city surveyor: provided, that all excavations and street crossings, paving, etc., broken up shall be replaced, repaired, and relaid to the entire satisfaction of the commissioner of public works: revocable at the pleasure of the council.' That 'under said permission the said Louisiana Sugar Refining Company has broken the grounds along and across the streets and thoroughfares of the said city in the direction of the said river from its aforesaid factory, and will, unless restrained by the equitable writ of injunction, complete said works, pipes, and conduits, and proceed to draw therewith water from the Mississippi river, in violation of the exclusive privileges aforesaid of the petitioner, and to its great damage and injury;' and 'that said Louisiana Sugar Refining Company has no riparian rights in the premises, and its property is not contiguous to said river.' The answer of the city of New Orleans denies all the allegations of the petition. The answer of the Louisiana Sugar Refining Company also denies all those allegations, except that it admits that by the ordinance aforesaid 'the city of New Orleans granted to it license and permission to lay water and sewerage pipes from its factory to the Mississippi river; and that it has availed itself of the license therein granted, strictly in accordance with the ordinance aforesaid;' and 'admits that it is the owner of certain property within the square bounded by Front, Clay, Bienville and Custom-House streets, in the city of New Orleans, and avers that said property is what is known as 'batture property,' and that the rights, ways, and privileges of the city of New Orleans were transferred by the title given by the said city of New Orleans to its vendors;' and 'avers that said property fronts on a public street and the quay, a public place, and that it is contiguous and adjacent to the Mississippi river, and that the respondent has riparian rights to draw water therefrom for its own use and manufacturing purposes, and to convey and discharge its water therein;' 'denies that the plaintiff corporation has any exclusive privilege and right to draw water from the Mississippi river by conduits and pipes, or otherwise, which could or would impair the use by this respondent and every other person of the said water for its own and their supply;' avers 'that, if there be any such pretended exclusive privilege and right, it is null and void, as in derogation of common right and of law;' 'denies that it has supplied or is now supplying or intends hereafter to supply the city of New Orleans or any of of its inhabitants with water, or to carry off and discharge any waste except its own; and expressly avers that the pipes laid are for its own exclusive use, and that it draws water from said river only for its own use and manufacturing purposes connected with its said factory;' and further avers 'that the exclusive rights and privileges claimed by the plaintiff under its charter would constitute a monopoly, and are therefore null and void.' Upon a trial by jury, it appeared that the material provisions of the aforesaid statutes of Louisiana were as above set forth; and the evidence supported all the al egations of fact in the petition, except that the acts of the Louisiana Sugar Refining Company, and the situation of its factory in relation to the river, were proved to be as follows: The company was constructing a factory on its land, bounded by Front, Clay, Bienville and Custom-House streets, and had begun to lay water and sewerage pipes, exclusively for the use of its factory, and according to lines and grades furnished by the city surveyor, from its factory straight to the river, across Front street, and thence across a broad quay or levee, owned by the city, and open to the public, except that some large sugar sheds occupied by lessees of the city stood upon it, and that the tracks of the Louisville, Nashville & Mobile Railroad were laid across it. The plaintiff asked the court to instruct the jury '(1) that the word 'contiguous,' as used in section 18 of the charter of the plaintiff company, means riparian, or on the edge of the river; (2) that the city of New Orleans has no...