Pacific Paper Co. v. City of Portland

• Decision Date: 21 October 1913
• Citation: 135 P. 871,68 Or. 120
• Parties: PACIFIC PAPER CO. v. CITY OF PORTLAND. [d]
• Court: Oregon Supreme Court

135 P. 871

68 Or. 120

PACIFIC PAPER CO. v. CITY OF PORTLAND. ^[d]

Supreme Court of Oregon

October 21, 1913

In Banc.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by the Pacific Paper Company against the City of Portland. Judgment for plaintiff, and defendant appeals. Affirmed.

Moore J., dissenting.

This is an action to recover damages sustained by reason of the negligence of the defendant which caused the bursting of a water main at Fourth and Ankeny streets in the city of Portland. The cause was tried before a jury, which found a verdict against the city in the sum of $675. From a resulting judgment, the defendant city appeals.

The main is described as a 24-inch pipe constructed in Fourth street, and leading from the reservoir in City Park at about 200 feet above the point where the main crosses Ankeny street. It was connected with a 24-inch main in Jefferson street, and a 20-inch main in Davis street. The city defends upon the ground, among others, that the main was laid maintained, and used for governmental purposes, namely, for protection against fire. It is shown by the testimony that another water main existed in Fourth street on the easterly side, which was tapped for domestic use; that the main in question was used for the purpose of supplying water for fire protection, but was connected with the system of the city which received its supply of water from Bull Run river, which water was sold to the people of the city for domestic use that the main was connected with several hydrants, which were at all times kept closed and not used except in case of fire but that some water circulated through said main and into others which were laid and maintained for the purpose of supplying water for domestic use.

L.E Latourette, of Portland (Frank S. Grant, of Portland, on the brief), for appellant.

John Van Zante and A.H. Tanner, both of Portland, for respondent.

BEAN, J. (after stating the facts as above).

The assignments of error relied upon by the defendant city present but one question, namely, Is the city liable for damages caused by the bursting of a water main, which is maintained and used for fire protection, when it appears that the main is connected with the general water system of the city used to supply water for domestic purposes and sale, and that water sufficient to fill a six-inch pipe passed from this main into other mains, and was there delivered to private consumers?

The city requested the court to instruct the jury upon this point, that the city would not be liable, although it appeared that some water might pass from this main into other mains and reach private consumers. The court did not instruct the jury as requested, but plainly submitted the following questions: Was the city maintaining the main as a part of the water system of the city of Portland for the purpose of receiving revenue from those who might ueed its water? Or was it engaged in using this water main exclusively for fire purposes? The court instructed the jury that the burden was upon the plaintiff to show every element necessary to recovery; that it must show that the city was using this water main for the purpose of profit, or, if it were not using it for profit, that it contemplated getting a profit out of it whenever it could; that the city was negligent; that such negligence was the proximate cause of the injury. Counsel for defendant contend that the city was deprived of its right of exemption as an agency of the state in the exercise of a governmental function.

The authorities agree that a municipal government has a double function, first, the private, proprietary function, and second, the governmental function as the arm or agent of the state. ...