Newsom v. City of Rainier

• Decision Date: 25 November 1919
• Parties: NEWSOM v. CITY OF RAINIER ET AL.
• Court: Oregon Supreme Court

185 P. 296

94 Or. 199

NEWSOM v. CITY OF RAINIER ET AL.

Supreme Court of Oregon

November 25, 1919

Department 1.

Appeal from Circuit Court, Columbia County; J. A. Eakin, Judge.

Suit by W. E. Newsom against the City of Rainier and others to restrain defendants from interfering with the laying of water mains and pipes. From a decree dismissing his suit, plaintiff appeals. Affirmed.

On October 5, 1896, the town of Rainier by its common council enacted Ordinance No. 26, granting to the plaintiff or Dean Blanchard, their successors and assigns, the right to lay and protect water mains in the streets and alleys of the town "so long as this contract shall remain inviolate," all in consideration of the grantees' agreeing to lay such pipes for the purpose of supplying water to the town and its inhabitants. Certain restrictions were made upon the maximum rates to be charged. Section 3 of this ordinance reads thus:

"All rights and privileges conferred by this ordinance may be forfeited by any future council upon a failure to supply a sufficient amount of water for legitimate household purposes, provided this shall not apply in cases of temporary and unavoidable leaks or breaks in the water plant."

The town reserved the right to purchase the plant upon an appraised value to be determined by arbitrators. The plaintiff claims to have accepted this ordinance and to have established a water system in the town, and that in 1909 the city passed an ordinance providing certain restrictions upon excavation in the streets and alleys and requiring an application to be made to the city recorder for permission therefor. He avers that he complied with the ordinance and that the officers of the city without cause have refused to grant him permission to make necessary excavations for the extension of his water system and have forcibly prevented him from performing the work. He prays for an injunction restraining them from interfering with the laying of water mains and pipes in the town.

The city contends in its answer that the ordinance is void because it purports to grant a franchise in perpetuity. It is also stated as a further defense that, after the plaintiff had refused to enlarge his system to make it adequate for the needs of the people in the municipality, the common council of the town passed ordinances repealing Ordinance No. 26 and revoking all of the rights which the plaintiff claimed thereunder. There are other statements of defensive matter not necessary to be noticed.

The plaintiff demurred to all of these separate defenses; but his demurrers were overruled and, as he refused to plead further the circuit court entered a decree dismissing his suit, and he has appealed.

M. B Meacham, of Portland, for appellant.

Arthur I. Moulton, of Portland, and Fred W. Herman, of Rainier, for respondents.

BURNETT J. (after stating the facts as above).

One of the principal questions to be considered is the validity of the franchise embodied in Ordinance No. 26. It will be observed that no limitation of time is contained in the enactment, but it will continue so long as the grantees comply with its terms. This constitutes a plain perpetuity within the meaning of City of Joseph v. Joseph Waterworks Co., 57 Or. 586, 111 P. 864, 112 P. 1083. The court there, speaking by Mr. Chief Justice Eakin, held that a municipality has no authority to grant a perpetual utility franchise. This being so, the ordinance conferred no right upon the plaintiff, and within the meaning of that principle he has no standing to assert any claim for relief against the city based on that enactment of its common council.

Another proposition is equally conclusive against the plaintiff. The ordinance which he accepted, and under which he claims constituted a contract or franchise between the city and himself. As one remedy for a breach of its terms on his part, they provided in section 3 that--

"All rights and privileges conferred by this ordinance may be forfeited by any future council upon a failure to supply a sufficient amount of water for legitimate household purposes."

The parties had a right thus to contract about the remedy for noncompliance with the conditions of the franchise. There is nothing unlawful about such a contract, and, as said in Breitenbach v. Bush, 44 Pa. 313, 84 Am. Dec. 442:

"If the parties adjust or modify the legal remedies for themselves by making them an express and substantive part of their contract, they cannot, as to that

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