Nord v. Butte Water Co.

• Decision Date: 29 March 1934
• Docket Number: No. 7192.,7192.
• Citation: 96 Mont. 311
• Parties: NORD v. BUTTE WATER CO.
• Court: Montana Supreme Court

96 Mont. 311

NORD
v.
BUTTE WATER CO.

No. 7192.

Supreme Court of Montana.

March 10, 1934.
Rehearing Denied March 29, 1934.

Appeal from District Court, Silver Bow County; T. E. Downey, Judge.

Action by Frances Nord against the Butte Water Company. From a judgment of dismissal, plaintiff appeals.

Reversed, and cause remanded for a new trial.

H. L. Maury and A. G. Shone, both of Butte, for appellant.

D. M. Kelly, D'Gay Stivers, John T. Dwyer, John A. Groeneveld, and James T. Finlen, Jr., all of Butte, for respondent.

MATTHEWS, Justice.

The plaintiff, Frances Nord, has appealed from a judgment of dismissal and for costs, entered on a directed verdict in favor of the defendant, the Butte Water Company, a corporation.

The action was founded on injuries received on the night of September 27, 1932, when, on a dark residential street in the city of Butte, Mrs. Nord tripped over a “Curb-box” capping an open pipe leading down to the service pipe conducting water from the defendant's main to a private residence. Originally the top of the curb box had been set level with the sidewalk and about a foot inside the curb, but the sidewalk had settled or been forced down until the box stood more than two inches above its level; according to witnesses for the plaintiff this condition had existed for more than two years prior to the night of the accident.

The defendant operates the Butte water plant as successor to the original waterworks company, under and by virtue of “Ordinance number 152” of the city of Butte. In 1893 the company promulgated rules and regulations, among which is the requirement that “all expense of laying service pipes from the mains to premises must be borne by the consumer,” and that a cast-iron curb box must be placed one foot inside the curb, and must be “kept in order and easily accessible.” The offending curb box was installed in 1896 and bears the legend “The Butte Water Company.”

In 1916, after the creation of the Public Service Commission, the company submitted to the commission, and the commission approved, the “rules, regulations and rates” of the waterworks company, which likewise required the consumer to install and care for the service pipe and curb box, and required the owner of premises to sign “an application for the introduction of water service” to any premises “on a regular form furnished by the company.” The “form” requests the company to supply water to the designated premises “subject to the conditions, rules and regulations of the *** company,” so approved. The present owner of the premises, in front of which plaintiff was injured, acquired the dwelling in 1926, and thereupon signed such an application.

In 1920 the city passed an ordinance requiring all plumbers, before doing any work, either installing or repairing supply pipes, to secure a permit; but this ordinance expressly excepts “necessary repairs *** defined as consisting of repairing leaks in soil, drain, waste, vent or other pipes and repairs on valves and faucets.” In 1929 a second ordinance was passed requiring the property owner to secure a permit before installing new service pipes and curb cocks or boxes, “or the repair of service pipes now existing,” which permit shall only be issued upon the payment of all costs, fees, and charges “for the making of openings in the streets or alleys.”

The position taken by the defendant, and evidently adopted by the trial court, is that: (a) Under the rules, regulations, and ordinances set forth, the service pipes and curb box belong to the property owner, upon whom is cast the burden of keeping them in repair; therefore the defendant owed no duty to the plaintiff, and, as a consequence, was not liable to her for her injury; (b) that, if the defendant owed a duty with reference to the curb box, it was not violated, as the condition arose because of a defect in the sidewalk and not in the curb box; (c) that, as the company was neither an owner nor a plumber, it could not have secured the permit required to make the repair.

(a) The authorities cited by the defendant in support of the first assertion, with one exception, deal only with the rights, duties, and liabilities of the city or utility company, and its customers, inter sese. The exception (Fisher v. St. Joseph Water Co., 151 Mo. App. 530, 132 S. W. 288) holds that the customer may be required to install the service pipe and curb box, and, having done so, they become “appurtenances to his realty,” and, “as between him and the water company, the burden was his to maintain it in repair.” Arguing from this postulate, and without the citation of an authority, the court held that the only duty owing by the company was to select an instrumentality reasonably safe for the purpose intended, and, the duty of maintaining it in repair being on the property owner, the company was not liable to a pedestrian injured by stumbling over the curb box, which had been forced above the level of the ground.

If a water company can legally require the consumer to lay or pay for the laying of service pipes in the street, and to install a curb box in the sidewalk and maintain it in repair, this holding might be logical, were it not for the fact that there exists somewhere a public duty to maintain the public way in a reasonably safe condition for travel. The declaration that the consumer is, in the circumstances, in duty bound to repair the curb box “as between him and the water company” does not answer the question as to who must discharge this public duty; a question seemingly entirely overlooked by the Kansas City Court of Appeals.

The question whether a water company can legally require its customers to lay or pay for service pipes “is not settled” (Wyman on Public Service Corporations, § 824 and note), but it is said that “it appears to be held with entire uniformity of decision” that this cannot be done in the absence of statutory regulation (Millville Imp. Co. v. Millville Water Co., 92 N. J. Eq. 480, 113 A. 516), and where, as in the case at bar, the franchise ordinance fixes the water rates to be charged, rules and regulations making such requirement have been declared to be unreasonable, unjust, and unenforceable. Title Guarantee & Trust Co. v. Railroad Comm. of California, 168 Cal. 295, 142 P. 878, Ann. Cas. 1916A, 738;Alvord v. City of Syracuse, 163 N. Y. 158, 57 N. E. 310;Hatch v. Consumers' Co., 17 Idaho, 204, 104 P. 670, 40 L. R. A. (N. S.) 263, affirmed 224 U. S. 148, 32 S.Ct. 465, 56 L. Ed. 703;State ex rel. De Burg v. Water Supply Co., 19 N. M. 36, 140 P. 1059, L. R. A. 1915A, 246, Ann. Cas. 1916E, 1290; City of Janesville v. Janesville Water Co., 7 Wis. R. C. R. 628; City of Montgomery v. McDade, 180 Ala. 156, 60 So. 797, 798;Cleveland v. Malden Water Works Co., 69 Wash. 541, 125 P. 769.

Wyman, in his work cited above, says: “On the other hand there is as much authority, if not more, to the effect that the requirement by legislation” may be upheld; citing Prindiville v. Jackson, 79 Ill. 337;Warren v. City of Chicago, 118 Ill. 329, 11 N. E. 218;Palmer v. City of Danville, 154 Ill. 156, 38 N. E. 1067;Jackson v. City of Ellendale, 4 N. D. 478, 61 N. W. 1030;Gleason v. Waukesha County, 103 Wis. 225, 79 N. W. 249. These cases uphold the authority of a city by ordinance to require the consumer to stand the expense of laying service pipes; no one of them justifies the statement that such a burden may be imposed “by the regulation of the company.” The North Dakota case alone deals with the duty of keeping in repair, and it but declares that this burden is on such a consumer in order to prevent waste of water from the city-owned plant. None of these cases deal with the duty to the traveling public, whose interests are “entitled absolutely to first consideration.” 2 Pond on Public Utilities, 854.

It may be that the authority of our Public Service Commission, created long after the installation of the instant service pipe and curb box, is sufficiently broad to cause its approval of the rules and regulations of the water company to cast upon the present owner the duty of maintaining the curb box “in repair and easily accessible”-a question we need not here determine-but if so, the requirement does not fix responsibility for the performance of the public duty under consideration. Even if the approval of the commission has the effect of raising the rules and regulations of the company to the dignity of legislation, there is no intimation therein of any intention to make the property owner liable to third parties.

“In the absence of any legislative enactment upon the subject, an abutting owner is not liable to travelers for injuries received by them because of a defect in the street in front of his premises, unless such defect was caused by his own act or fault.” Elliott on Roads & Streets (4th Ed.) 1179; 13 R. C. L. 321. Elliott cites many cases holding that a statute attempting to cast such a burden upon the property owner is unconstitutional. The reason for such holding is that the requirement that the property owner keep the sidewalk in repair is laid under the taxing, not the police, power, and therefore cannot extend to rendering the owner liable for the failure of the city to perform its duty to the public. Noonan v. Stillwater, 33 Minn. 198, 22 N. W. 444, 53 Am. Rep. 23. Other courts give some effect to such a statute by holding that it applies only to cases arising from the active negligence of the property owner. Selleck v. Tallman, 93 Wis. 246, 67 N. W. 36;Hay v. City of Baraboo, 127 Wis. 1, 105 N. W. 654, 115 Am. St. Rep. 977, 3 L. R. A. (N. S.) 84, and note.

In this state the fee to the street is in the state; the city is but a trustee thereof (City of Butte v. Mikosowitz, 39 Mont. 350, 102 P. 593); a sidewalk is but a part of the street. Kipp v. Davis-Daly Copper Co., 41 Mont. 509, 110 P. 237, 36 L. R. A. (N. S.) 666, 21 Ann. Cas. 1372;Mitchell v. Thomas, 91 Mont. 370, 8 P.(2d) 639. The city has the same control over, and duties with...