Paris Mountain Water Co. v. City Council of Greenville

• Decision Date: 30 July 1898
• Citation: 30 S.E. 699,53 S.C. 82
• Parties: PARIS MOUNTAIN WATER CO. v. CITY COUNCIL OF GREENVILLE.
• Court: South Carolina Supreme Court

30 S.E. 699

53 S.C. 82

PARIS MOUNTAIN WATER CO. v. CITY COUNCIL OF GREENVILLE.

Supreme Court of South Carolina

July 30, 1898

Appeal from common pleas circuit court of Greenville county; James Aldrich, Judge.

Action by the Paris Mountain Water Company against the city council of Greenville. There was a judgment for the defendant, and plaintiff appealed. Reversed.

Wells Ansel & Cothran, for appellant.

J. A McCullough, for respondent.

GARY A. J.

The plaintiff brought this action to recover damages alleged to have been sustained on account of the grading of certain streets, by reason of which its waterways and pipes, which were laid, under a contract with the defendant, through said streets, were injured. The defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action in that: "(1) It fails to allege facts showing such an invasion by the defendant of the rights of the plaintiff as would entitle it to damages, and the injury sustained by plaintiff, if any would be damnum absque injuria. (2) There is no act of the legislature which makes the defendant liable for damages on account of the facts alleged in the complaint. (3) Plaintiff held its easement subject to the rights of the defendant to grade and repair its streets." The case was heard under the following stipulations, to wit: "It is agreed that the court shall determine the defendant's demurrer that the complaint does not state facts sufficient to constitute a cause of action, in that the alleged damage was the result of the action, of the city council in changing the grade of Main street, which said action the said city was authorized by law to do, and for damages resulting from which it is not liable. The defendant's objection that no arbitration has been demanded, as provided for in the charter, is not to be pressed upon this argument, but is not waived. This objection may be pressed at subsequent stages of the proceedings when the question of amount of damages is to be settled. It is admitted that the city claims to have done the work under the authority of the act found in 20 St. at Large, p. 1372, which may be referred to in the argument. The ordinances of the city in reference to the granting of privileges to, and contracting with, the American Pipe Manufacturing Company and the Paris Mountain Water Company, may be used upon this hearing." The circuit judge signed the following order dismissing the complaint, to wit: "This was a motion to dismiss the complaint, upon the ground that the facts therein are not sufficient to constitute a cause of action in favor of the plaintiff and against the defendant. The defendant contends that the plaintiff's cause of action, if any, is based upon section 30 of the charter, and that said section has no application to a case of this kind. The plaintiff, on the other hand, contends (1) that the act of the defendant in lowering the grade of the street was an alteration thereof within the meaning of section 30, and that the defendant is liable, under the said section, for damages; (2) that the ordinance a portion of which is set forth in paragraph 4 of the complaint constitutes a contract between the plaintiff and the defendant, and the acts of the defendant complained of impaired the obligation thereof, and that upon that ground also the complaint states a good cause of action. Viewing the complaint in either of the aspects presented above, I am satisfied it cannot be sustained, because: (1) The defendant had the right to grade the street in question, and, under the well-established rule, was not liable for consequential damages arising therefrom, unless made so by statute. Section 30 of the charter does not afford such relief, because, construing the word "alter" as it appears in said section and by its context, I am satisfied that it does not mean, include, or refer to a change in the grade of a street. It means and refers to a change in the course or direction of a street, a widening thereof, or some act which involves a taking or damaging of the property of an adjoining owner. (2) Viewed from the point of a contract, as argued by the plaintiff, I am satisfied the complaint cannot stand. It does not appear from the allegations of the complaint or the ordinance referred to that the defendant contracted not to lower the grade of the street, or expose plaintiff's pipes; nor is there any provision therein for damages on account thereof. The plaintiff admitted in its communication to the defendant, as set forth in paragraph 9 of the complaint, that the defendant had the legal right to change the grade of its street; and this was also admitted in argument of counsel before me. Having the legal right, then, to do the work complained of, and there being no provision in the contract providing for damages in case plaintiff's pipes should be thereby exposed, I cannot see how the defendant can be made liable for the expenses which the plaintiff was put to in lowering its pipes; and this is the only damage which the complaint alleges the plaintiff sustained. The contract is not impaired. Its obligation is not affected. It purported to give the plaintiff a certain franchise, which franchise the complaint does not charge had been infringed. But, even though the said contract be construed as obliging the defendant not to exercise its right to lower the grade, in such event the contract would be ultra vires, since the defendant who holds the streets in trust for the public would have no power to contract away its right and duty to grade and improve its streets. This is a governmental function, and cannot be bartered away. This principle is established by numerous authorities. I therefore conclude that the...