Appeal
from Common Pleas Circuit Court of Greenville County; J. C
Klugh, Judge.
Mandamus
by J. B. Poole against the Paris Mountain Water Company. From
an order dismissing the petition, petitioner appeals.
Reversed and remanded, with instructions.
The
decree dismissing the petition, mentioned in the opinion of
the Supreme Court, is as follows:
"This
case comes before me on petition for a writ of mandamus to
compel the respondent to furnish water to the residence of
the petitioner on Cox street, in the city of Greenville.
Upon reading the application and petition a rule was
issued, directed to the respondent, requiring it to show
cause why the writ should not be granted as prayed for in
said petition. To this the respondent made due return, and
argument was had before me on this date. A brief statement
of the facts is as follows: During the month of January
1907, the petitioner took up his residence in a dwelling
house on Cox street, which house was owned by one W. A.
Hamby. He found that water was at that time in the pipes,
and he continued to use it during the whole of that year,
paying nothing for it. Near the end of the year 1907, he
was notified that, unless the water bills were paid, the
water would be cut off. The petitioner refused to pay the
water bills, and the water supply was thereupon cut off.
The petitioner then endeavored to have a new contract
executed for the year 1908, but respondent refused to do so
until the water rent for 1907 was paid. He then brought
this action to compel the respondent to furnish him with
water for the year 1908. It appears that a very large
quantity of water passed through the meter into the service
pipe of the petitioner during the year 1907, so much, in
fact, as to indicate a most excessive use of water or the
existence of a leak. The water rent for the year amounted
to about $60. In an endeavor to adjust the matter the
respondent offered to settle the entire bill for the year
of 1907 for $12. The petitioner offered to pay $5, and upon
the refusal of the respondent to accept this offer, all
negotiations looking to a settlement were ended. It appears
that the respondent is operating under a franchise granted
by the city council of Greenville, which fixes the rates
and also allows the respondent to make reasonable rules and
regulations, one of the regulations being
that, for failure to pay water bills the service may be
discontinued. The petitioner had no written contract with
the respondent for water for the year, 1907, but the use of
the water for the year 1907 by the petitioner created an
implied contract to pay a reasonable sum for such amount of
water as he consumed. The existence of this implied
contract is admitted by the petitioner. As for the charge
to be made, it is left entirely optional with the
respondent whether it shall charge a flat rate of $5 per
year or a meter rate based upon the amount of water
actually consumed. Both methods are authorized by the
franchise. The respondent chose to charge a meter rate, as
it was empowered to do.
"I
therefore find as follows: (1) That under the ordinance
containing the franchise the respondent had the right to
charge 40 cents per 1,000 gallons for the water by meter
readings; no question being raised as to the validity of
the ordinance, the reasonableness of the rate of the
reliability of the meter. (2) That the petitioner used
water for the year under an implied contract to pay a
reasonable sum for the amount consumed; the existence of
the implied contract being admitted by the petitioner, and
the reasonableness of the rate not being questioned. (3)
That the ordinance granted the respondent the right to make
reasonable rules and regulations, and that in pursuance
thereof the respondent adopted a rule providing that, if
water bills were not paid within 30 days, the water might
be cut off. The reasonableness of this rule was not
questioned. (4) That the opinion of the petitioner that he
has not consumed as much water as the meter registered is
not of itself sufficient to justify him in refusing to pay
his water bills; the meter readings being taken as true, in
the absence of testimony to the contrary . (5)
That this is not such a case of disputed account as will
prevent the respondent from availing itself of its
franchise rights. (6) That the respondent has acted in all
respects in accordance with its legal rights under its
franchise. It is therefore ordered, adjudged, and decreed,
that the application for a writ of mandamus be denied and
that the petition be dismissed."
JONES
J.
The Paris Mountain Water Company, respondent, is a
corporation under the laws of this state, and is engaged in
the business of supplying water to the city of
Greenville and its inhabitants. The petitioner, Poole, is a
citizen and resident of the city of Greenville, and the
dwelling occupied by him, No. 487 Cox St., was connected by
service pipe and meter with defendant's water mains.
William A. Hamby was the owner of the dwelling, and water was
supplied under a contract made between respondent and Hamby
before petitioner became tenant. The petitioner became tenant
of the house on January 24, 1907, and, finding the water
turned on, used so much of it as he desired during the year
1907. About January 1, 1908, respondent presented petitioner
with a bill for $65, based upon the quantity of water as
registered by the meter, at 40 cents per 1,000 gallons. The
petitioner, claiming that the amount demanded was exorbitant,
refused to pay the same, but offered to pay $5, the flat rate
provided in the schedule for "residence occupied by one
family, five rooms," which was refused by respondent.
Within 10 days after presenting the bill respondent cut off
the water supply from the premises. Respondent offered to
adjust the account for $12, but petitioner refused to pay
that amount. Petitioner demanded that respondent supply his
premises with water, and offered to sign a contract for the
year 1908 on a reasonable basis, and to pay the first quarter
in advance, but respondent refused to supply him further with
water, unless he pay the amount demanded, reduced to $12.
This proceeding was begun in the circuit court to compel
respondent to supply petitioner with water and to execute a
contract for the year 1908 at the rate of $5 per annum, the
minimum rate fixed by the city ordinance, upon compliance by
petitioner with the reasonable rules of respondent company.
Judge Klugh dismissed the petitioner in a
decree herewith reported, and the petitioner appeals.
Mandamus
is an appropriate remedy to compel a public service water
company to supply its customers with water, upon compliance
with its reasonable rules and regulations. The right of the
company to adopt reasonable rules for the conduct of its
business, and the duty of the customer to comply with such
rules, is not and cannot be disputed. The rule, adopted by
respondent, involved in this case is as follows: "All
water rents shall be payable to the treasurer or other
authorized person at the office of the company on the first
day of January, April, July and October of each year. Should
the water rent remain unpaid thirty (30) days from the date
of bill, the supply of water may be cut off without notice
and the company shall have the right to sue for and recover
the amount due for the time that water was furnished prior to
cutting off supply." In the absence of a statute making
water rents...
