Pocatello Water Co. v. Standley

• Decision Date: 24 May 1900
• Parties: POCATELLO WATER COMPANY v. STANDLEY
• Court: Idaho Supreme Court

61 P. 518

7 Idaho 155

POCATELLO WATER COMPANY v. STANDLEY

Supreme Court of Idaho

May 24, 1900

PROPERTY DEDICATED TO PUBLIC USE-RULES AND REGULATIONS.-When a water company undertakes the performance of a public duty, it devotes its property used for that purpose to a public use and may make such reasonable regulations for the conduct of such business as may be necessary.

RIGHTS OF WATER COMPANY.-Held, that a rule reserving the right to the company to make all taps of its mains and pipes, is a reasonable one.

SAME-LAYING MAINS AND PIPES.-Held, under its franchise, it is required to lay all mains and pipes in the streets and alleys of the city of Pocatello necessary to accomplish the purpose for which said franchise was granted, and, on proper demand, to tap and connect such mains or pipes with the private pipes of citizens of said city at the line of its franchise limits, to wit, the side lines of said streets and alleys.

SAME.-Held that such connections and pipes within said limits so laid by the company, are part of the property of said company, and necessary to complete its said waterworks system, and necessary to accomplish the purposes for which said franchise was granted.

RIGHTS OF PLUMBERS.-The water company has no authority to enter upon the private property of the citizen, and lay its water pipes or to dictate to the citizen who shall lay his private water pipes for him. Nor, can it refuse to connect its water pipes with the private water pipes of a citizen that are laid to the line of its franchise limits, on the ground that such private pipes were laid by a plumber not selected by it.

DUTY TO PUBLIC.-Held, that the company must lay all necessary water pipes within its franchise limits, at its own expense.

(Syllabus by the court.)

APPEAL from District Court, Bannock County.

Judgment affirmed, with costs in favor of respondent.

J. W Eden and D. W. Standrod, for Appellant.

The Pocatello Water Company, a corporation, was formed for the purpose of supplying the city of Pocatello and its inhabitants with pure and wholesome water. It received from said city a franchise to lay in the streets of said city main and lateral pipes in which to convey the water to the said city and the inhabitants thereof. The main and lateral pipes having been laid in the streets of the city for the purposes, were, by the action of the water company, dedicated to a public use. (Franke v. Paducah Water Supply Co., 88 Ky. 467, 11 S.W. 432, 718, 4 L. R. A. 265; Haugen v. Albina Light etc. Co., 21 Ore. 411, 28 P. 244, 14 L. R. A. 424; Munn v. People, 94 U.S. 113; Idaho Const., art. 15, sec. 1.) When the company undertakes to say who shall exercise the trade of a plumber in making such connections, it is using a power in plain violation of the organic law of the state. (Idaho Const., art. 1, sec. 1; art. 11, sec. 8.)

Thomas F. Terrell, Winter & Gyheen and Hawley, Puckett and Hawley, for Respondent.

It is well settled that parties who carry on a business which is public in its nature, or which is impressed with public interest, must serve all who apply on equal terms and at reasonable rates. (City of Danville v. Danville Water Co., 180 Ill. 235, 54 N.E. 224; Wagner v. City of Rock Island, 146 Ill. 139, 34 N.E. 545; Munn v. Illinois, 94 U.S. 113; Rogers Park Water Co. v. Fergus, 178 Ill. 571, 53 N.E. 363; City of Danville v. Water Co., 178 Ill. 299, 69 Am. St. Rep. 304, 53 N.E. 118.) A quasi public corporation occupying or using the streets of a city is also subject to the police powers of the city, which is the power to protect the public health, the public morals and the public safety of its citizens. (N. O. Gas Co. v. Louisiana L. Co., 115 U.S. 650, 6 S.Ct. 252.) If any of appellant's rights had been violated, the courts were open to him, and quasi public corporations can be compelled to perform public functions by the writ of mandamus. (Haugen v. Albina L. & W. Co., 21 Ore. 411, 28 P. 244-248.) The respondent having lawfully obtained its franchise under sections 2710 to 2713 of the Revised Statutes, was given a right that became and now is property. (Rev. Stats., sec. 1451, sub. sec. 12, sec. 2642; Dillon on Municipal Corporations, sec. 691.) It is such a vested property right that no subsequent legislation can alter, affect or impair. (Law of Incorporated Companies, 150, 152, 156, 191, 193, 199, 200, 201, 214, 1561; Teideman on Police Powers, sec. 100 et seq.; City of Rushville v. R. N. G. Co., 132 Ind. 575, 28 N.E. 853; People v. Deehan, 153 N.Y. 528, 47 N.E. 787; People v. O'Brien, 111 N.Y. 1, 7 Am. St. Rep. 684, 18 N.E. 692; Albany Ry. Co. v. Brownwell, 34 N.Y. 345; New Orleans Water Works v. Rivers, 115 U.S. 674, 6 S.Ct. 273; Louisville Gas Co. v. Citizens' Gas Co., 115 U.S. 683, 6 S.Ct. 265; N. O. Gas. Co. v. Louisiana L. Co., 115 U.S. 650, 6 S.Ct. 252; St. Tammany W. Co. v. N. O. Water Co., 120 U.S. 64, 7 S.Ct. 405; Citizens' Water Co. v. Bridgport Co., 55 Conn. 1, 10 A. 170; Rockland Water Co. v. Camden R. W. Co., 80 Me. 544, 15 A. 785.) In the maintenance and operation of this water system the right necessarily follows to tap its mains and lay its laterals within its franchise limits. If this be done by others, it must be under the regulation and control of the owner of the franchise who could at any time prevent its being done by others. (Blondell v. Consolidated Gas. Co., 89 Md. 732, 43 A. 817, 46 L. R. A. 187; Washington Gas Co. v. District of Columbia; 161 U.S. 316; 16 S.Ct. 564.) The respondent would be liable in damages for any injuries done by the bursting of defective mains or pipes, or improper or careless excavations. This would be true, whether respondent did the work itself, or permitted it to be done by others. (Aurora Gas Light Co. v. Bishop, 81 Ill.App. 493; Armbruster v. Auburn Gas Co., 18 A.D. 447, 46 N.Y.S. 158; Butcher v. Providence Gas Co., 12 R. I. 149, 34 Am. Rep. 626; Koelsch v. Philadelphia, 152 Pa. 355, 34 Am. St. Rep. 653, 25 A. 522; Smith v. Boston Gas Co., 129 Mass. 318; Topeka Water Co. v. Whiting, 58 Kan. 639, 50 P. 877; Esberg Cigar Co. v. Portland, 34 Ore. 282, 75 Am. St. Rep. 651, 55 P. 961; Rockport G. & L. Co. v. Ernst, 68 Ill.App. 300.)

SULLIVAN, J. Huston, C. J., and Quarles, J., concur.

OPINION

SULLIVAN, J.

This action was brought by the respondent company against the appellant, who is by occupation a plumber, to enjoin and restrain him from in any manner tapping the mains and laterals of the respondent's water system, or from in any manner interfering with or molesting its valves, cocks, shutoffs, or other property or appliances, or from approaching within such distance of its mains or laterals, by excavation or otherwise, as will subject the same to injury or damage by freezing or being broken by exposure. It is alleged in the complaint and admitted in the answer that respondent has been lawfully granted a franchise by the city of Pocatello to maintain and operate a complete system of waterworks, and the right of way over, along, and under all of the streets, alleys, and public highways of said city for the purpose of laying its mains, pipes, laterals, and conduits through which to furnish said city and its inhabitants with water for municipal and domestic purposes. It is also admitted that the respondent accepted said franchise, and has laid its mains, pipes, and conduits, and has complied with the terms of said franchise in the construction of said system of waterworks, and has been supplying said city and its inhabitants with water by means of said system for many years. The appellant is a plumber, and engaged in the plumbing business in said city, and claims the right to go upon said streets and alleys within the franchise limits of the respondent, and tap its mains and laterals, and make connection therewith for prospective consumers of water who have employed him to lay pipes for them. It is not the prospective consumer of water that is complaining in this action, and it is not claimed that respondent has at any time failed or neglected to make the proper connection between the private pipes and the company's main and furnish or supply water to anyone upon reasonable demand or notice; and it is conceded by respondent that it is its duty to make such connection and supply water to any and all persons residing in said city who desire it. The real point in issue is, Can the respondent prevent the appellant by injunction from tapping its mains and laterals, and connecting therewith private service pipes leading from such connections to the private premises of persons desiring to use the water supplied by said company, when the company has not refused to make such taps or connections? That is the issue presented by the pleadings, and on motion by counsel for respondent the court below granted judgment on the pleadings, from which this appeal is taken.

It is conceded at the outset that the waterworks constructed under said franchise were dedicated to a public use, and are subject to public regulations; but it is not conceded that...