Panton v. Duluth Gas & Water Co.

• Decision Date: 13 June 1892
• Citation: 50 Minn. 175
• Parties: JOHN PANTON <I>et al.</I> <I>vs.</I> DULUTH GAS & WATER CO.
• Court: Minnesota Supreme Court

50 Minn. 175

JOHN PANTON et al. vs. DULUTH GAS & WATER CO.

Supreme Court of Minnesota.

Submitted on briefs May 13, 1892.

Decided June 13, 1892.

Appeal by plaintiffs John Panton and Joseph Watson, from an order of the Municipal Court of the City of Duluth, Hanks, J., made July 8, 1891, granting defendant a new trial.

The defendant, the Duluth Gas and Water Company, on October 24, 1890, demanded of plaintiffs $171.63, claiming that amount to be due it for water supplied to plaintiffs during ten months. Its servants were about to cut off the supply unless plaintiffs paid the bill. They paid it under written protest that it was too large by at least $85. They brought this action to recover this alleged excess and obtained a verdict for the amount. The court granted the defendant a new trial, deeming the verdict not warranted by the evidence. From that order plaintiffs appeal.

Cotton & Dibell, for appellants.

Draper, Davis & Hollister, for respondent.

DICKINSON, J.

The defendant is a corporation owning and operating the water works by which the city of Duluth is supplied with water, and authorized by law to charge for water supplied to the inhabitants at specified rates, measured by the quantity supplied.

The plaintiffs occupy a building in the city for mercantile purposes, and keep in their service therein some forty or fifty employes. The only water supply for the premises is that afforded by the defendant. There are three water-closets in the building, and faucets elsewhere for drawing water, these all being supplied with water in the usual manner. The water thus supplied is used for the closets, for sprinkling, washing floors and windows, for drinking, and for the ordinary daily use of the persons in the building, but not for culinary purposes. The defendant made a demand on plaintiffs for payment of a specified sum for use of water during a particular period. The plaintiffs refused to pay that sum, claiming that the water meter on the premises, put in by the defendant, did not correctly measure the amount of water passing through it, and that the amount of water for which the charge was made was much in excess of the amount actually used. The defendant was about to shut off the water supply from the building because of such refusal, as it assumed the right to do, when the plaintiffs, in order to prevent the water being shut off, paid the sum charged, under protest, and now prosecute this action to recover back the amount of the alleged overcharge.

1. Upon the question of fact as to the water meter...