Omaha Water Co. v. City of Omaha

• Decision Date: 08 November 1907
• Docket Number: 2,500.,2,499
• Citation: 156 F. 922
• Parties: OMAHA WATER CO. v. CITY OF OMAHA. SAME v. CITY OF OMAHA et al.
• Court: U.S. Court of Appeals — Eighth Circuit

156 F. 922

OMAHA WATER CO. v. CITY OF OMAHA. SAME v. CITY OF OMAHA et al.

Nos. 2,499, 2,500.

United States Court of Appeals, Eighth Circuit.

November 8, 1907

R. S Hall and Howard Mansfield (Herbert C. Lakin, on the brief) for plaintiff in error.

John Lee Webster and Carl C. Wright (Harry E. Burnam, on the brief), for defendants in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

HOOK Circuit Judge.

The Omaha Water Company brought two actions against the city of Omaha, the first for hydrant rentals for the six months ending December 31, 1904, and the other for like rentals for the six months ending June 30, 1905. They were brought shortly after the accrual of the sums sued for respectively. The water board of the city of Omaha which had recently been created a corporation by legislative act, and vested with certain powers respecting the municipal water supply, was joined as a defendant in the second action. The aggregate amount claimed was $94,240.48. It was not denied that, aside from the specific defenses in the answers, the sums sued for were due and owing. The answers of the city set forth that the contract between it and the company which was the basis of the actions required of the latter the continued performance of certain duties, and that it had failed in three material particulars: (1) To furnish ample fire protection through hydrants without the aid of hand or steam engines. (2) To furnish pure, wholesome, clear water suitable for culinary and drinking purposes. (3) To install new hydrants upon new mains as ordered by the municipal authorities. The answer in the second action also contained a counterclaim for $81,645.68 for damages for the failure of the company in the first of the particulars mentioned, it being averred that, because of the inadequate fire protection, the city had been compelled to expend that sum in the purchase and maintenance of fire engines, etc. The actions were tried together. At the conclusion of the evidence, the trial court upon motion for directed verdicts held that the city had not made out its first and second defenses, and therefore denied recovery upon the counterclaim predicated upon the matters set out in the first defense. On the other hand it held that the company had failed to install new hydrants ordered by the city, that no legal excuse therefor had been shown, and that, while in the position of violating the contract, it could not recover upon the contract for the rentals of the hydrants it had installed. Verdicts for the defendants were directed and judgments rendered against the company on its causes of action and a judgment against the city on its counterclaim. The city acquiesced in the result, but the company prosecuted these writs of error.

Upon the theory that if the trial court should have directed the verdicts upon any ground its action should be affirmed though it selected the wrong one, we have considered all three of the defenses of the city, and have reached the conclusion that the court was right in its decision upon the first two of them. By the contract and ordinances pursuant to which the waterworks were built in 1880-83 by predecessors in title of the water company, and in which the municipal franchise was granted, the character and style of the works and the source from which the water supply was to be obtained were definitely prescribed. The contract and ordinances left very little to the judgment and discretion of the builder and practically nothing so far as the efficiency of the system depended upon the correct solution of engineering problems. Before the ordinances were adopted and the contract was made, a hydraulic engineer was employed by the municipal authorities to study the topography of the city and devise a plan for a system of waterworks. In May, 1880, he submitted to the city council an exhaustive report describing with much detail the results of his labors. The report and an amendment thereto were afterwards embodied in the contract, and referred to and made a part of the ordinances. The material features of the report were as follows: The water for all purposes was to be secured from the Missouri river and the point of intake where the pumping station was to be installed was designated. The character of the buildings at the pumping station and the capacity of the pumps were specified. The storage and settling reservoirs were located, their number and capacity given, and the elevations of the former above low water-mark of the river and above the various portions of the city were set forth. The main or pipe system was described in minute detail. The names of the streets in which the pipes were to be laid, the distances to be traversed, the size of the pipes in each street, and the precise location of the first 247 fire hydrants were shown. The report also contained tables showing the discharge capacity of water mains or pipes of specified diameters and lengths, and also the distances fire streams could be thrown with stated pressures at the hydrant heads through hose of different lengths, and nozzles of different diameters. The character of Missouri river water, its excellence for drinking and domestic purposes, and the ease of clarifying it were discussed. In short, the report which concluded with an itemized statement of the estimated cost furnished almost complete plans and specifications for the entire works. The distribution system was designed for both fire protection and private consumption. In other words, there was not to be a separate system of mains and pipes for each. The difficulties in depending wholly upon direct hydrant pressure for fire protection were pointed out. It was said that in a large, densely populated city it could scarcely be considered a safe reliance; that the friction caused by the transmission of the water through an extensive pipe distribution and the depletion by daily consumption would necessitate an immense initial pressure as the city grew. It was said that the experience in many cities was that reliability upon direct hydrant service was diminished proportionately to the increase of the demand for current supply. Hydrant service as a sole reliance for fire protection depended upon one or both of two things, namely, the gravity pressure resulting from the elevation of the reservoirs and direct pressure from the pumps of the waterworks. The maximum gravity pressure was fixed by the elevation of the reservoirs, and therefore not the subject of increase, though its efficiency depended greatly upon the judicious arrangement of the pipe system and the location of the hydrants. As the city grew, this pressure was subject to great impairment by the increase of friction in the increase of the pipes and by the constant withdrawal of water by consumers. On the other hand, it was stated that direct pressure from the pumps was always more or less objectionable. The contract and ordinances required that the works should be of capacity and power to throw streams of water to specified heights from hydrants at designated points. When the works were completed in 1883, they were subjected to these tests, and were accepted by the city as complying with all requirements. In the fall of 1905, after these actions were begun, the city authorities made tests of the pressure at the hydrants, and it is contended that they disclosed that the pressure was deficient, and did not reach the contract standard. On the other hand, the company claims that it was not contemplated that the pressure specified in the contract should be maintained longer than a year...