Seymour Water Co. v. City of Seymour

• Decision Date: 30 March 1904
• Citation: 70 N.E. 514,163 Ind. 120
• Parties: SEYMOUR WATER CO. et al. v. CITY OF SEYMOUR.
• Court: Indiana Supreme Court

163 Ind. 120

70 N.E. 514

SEYMOUR WATER CO. et al.

v.CITY OF SEYMOUR.^*

Supreme Court of Indiana.

March 30, 1904.

Appeal from Circuit Court, Jennings County; A. G. Smith, Special Judge.

Action by the city of Seymour against the Seymour Water Company and others. From a judgment for plaintiff, defendants appeal. Reversed.

Merrill Moores and O. H. Montgomery, for appellants. Shea & Wood, Elliott, Elliott & Littleton, Lincoln Dixon, and Butt New, for appellee.

GILLETT, C. J.

This suit was instituted by appellee against appellants. The complaint was in two paragraphs, each of which was challenged by demurrer by each of appellants. The demurrer was overruled, and by proper assignments of error the question as to the sufficiency of said paragraphs is presented for our consideration.

The first paragraph is as follows:

“That the plaintiff is a municipal corporation existing under and by virtue of the laws of the state of Indiana. The defendant the Seymour Water Company is a corporation organized under, and existing by virtue of, the laws of the state of Indiana. The defendant the Farmers' Loan & Trust Company of New York is a corporation organized under, and existing by virtue of, the laws of the state of New York. Merrill Moores, trustee herein, is a citizen of the city of Indianapolis, in the state of Indiana. That on the 7th day of March, 1889, the common council of the city of Seymour, plaintiff herein, passed an ordinance in the words and figures following:[At this point there is set out a copy of an ordinance purporting to grant to one Willett E. McMillan, his heirs and assigns, the right to establish a waterworks system to supply said city and its inhabitants with water, and an undertaking by the city to rent a certain number of hydrants. Without explanatory averment, there is next set out what purports to be a formal acceptance.] That said city council, by its said action and by its said ordinance, attempted to grant to one Willett E. McMillan an exclusive franchise and monopoly to supply the city of Seymour and its inhabitants with water for a period of from thirty to sixty years, as provided in said ordinance, at an exorbitant and unreasonable price, and for an unreasonable and illegal time; thereby imposing unreasonable burdens upon said city and the inhabitants thereof. That said ordinance attempts to grant an exclusive contract and franchise, and is ultra vires, contrary to public policy and the Constitution of Indiana, and is wholly void. That on the 23d day of July, 1889, the said Willett E. McMillan, mentioned in said ordinance, assigned and transferred all his rights and interest to and in said contract to the defendant herein, said Seymour Water Company, and that the defendant the said Seymour Water Company has no right, title, or interest to or in said contract, except as the assignee of said Willett E. McMillan, which assignment is in the words and figures following: ‘Seymour, July 23, 1889. For value received I hereby sell, assign, transfer and set over to the Seymour Water Company all rights of every description growing out of the within contract. Willett E. McMillan.’ The plaintiff further avers that on the 1st day of August, 1889, the defendant the Seymour Water Company executed to the defendants the Farmers' Loan & Trust Company of the City of New York and Merrill Moores, trustee, a deed of trust and mortgage upon the said property of the said Seymour Water Company in and about the city of Seymour, plaintiff herein. The plaintiff further avers that the said Seymour Water Company assigned to the said defendants, trustees, all the hydrant rentals to be paid by said city to said Seymour Water Company, and directed said city to pay said water rentals to said trustees; that said trustees, because of the premises herein set out, claim to have some interest in said contract, which claim is adverse to the interest of this plaintiff, and on the same side as the defendant waterworks company. Wherefore the plaintiff prays the court that said contract be revoked and declared to be null and void and of no force and effect; that the said city and its inhabitants be relieved from its burdens; and that the defendants, and each of them, be forever enjoined from attempting to enforce and ever claiming any rights under said contract.”

The second paragraph omits the ultra vires charges, but alleges, in addition to the other averments of said first paragraph, the following:

“That said defendant the said Seymour Water Company, defendant herein, had fully failed and refused to comply with the terms of said contract, in this, to wit: (1) That said defendant has wholly failed and refused to supply water suitable for domestic purposes, as provided for in section 1 of said ordinance, but that said water supply to the plaintiff city and its inhabitants has at all times been very impure and wholly unfit for domestic and drinking purposes. (2) That said defendant has wholly failed and refused to comply with section 14 of said ordinance, which requires said defendant to furnish fire pressure for fire service to the amount of one hundred pounds to the square inch. Plaintiff avers that such fire pressure has never been furnished to the amount of one hundred pounds to the square inch, but that said fire service furnished has been notoriously inadequate and insufficient, to the great loss and damage of the said city and its inhabitants.”

In determining the sufficiency of the first paragraph of complaint, as against the Seymour Water Company, it will be profitable to note some matters which said paragraph omits to allege. It does not charge (1) that a waterworks system was ever built or maintained by said company or by any one else in pursuance of said contract and franchise, or that anything has been done by virtue thereof; (2) that said water company is attempting or threatening to use or occupy the streets or other public places of said city under said grant; (3) that said water company is asserting any claim or title by virtue of said grant, either adverse to the city or otherwise; (4) that said grant is a cloud upon the city's title.

Counsel for appellee contend that said paragraph is sufficient to quiet title. Section 1082, Burns' Ann. St. 1901, provides that “An action may be brought by any person, either in or out of possession, or by one having an interest in remainder or reversion, against another who claims title to or interest in real property adverse to him, although the defendant may not be in possession thereof, for the purpose of determining and quieting the question of title.” The principles upon which the statutory action to quiet title are based are, in a large measure, of equitable origin and, while such principles have been influential in the construction of the statute, yet the fact remains that the proceeding as it now exists is essentially the creature of legislative enactment. Ragsdale v. Mitchell, 97 Ind. 458;Trittipo v. Morgan, 99 Ind. 269;Johnson v. Taylor, 106 Ind. 89, 5 N. E. 732;Puterbaugh v. Puterbaugh, 131 Ind. 288, 30 N. E. 519, 15 L. R. A. 341. In Johnson v. Taylor, supra, it was said concerning such statutory action that “the plaintiff or cross-complainant must allege in his complaint or cross-complaint that he is the owner of certain real estate, or of a certain interest therein(describing the same), and that the claim of the defendant to his action or cross-action, in or to such real estate or interest therein, is adverse to the title asserted by the plaintiff, or is unfounded and a cloud upon plaintiff's title.” It should be stated in this connection, however, that, in view of the Code, a complaint to quiet title is not to be condemned because of the lack of any merely formal statement as to the nature of the defendant's claim, or of its relation to or its effect upon the plaintiff's title, where the general facts alleged supply such formal allegations as a necessary influence. Caress v. Foster, 62 Ind. 145;Kitts v. Willson, 106 Ind. 147, 5 N. E. 400;Rausch v. Trustees, etc., 107 Ind. 1, 8 N. E. 25;Bisel v. Tucker, 121 Ind. 249, 23 N. E. 81;Wilson v. Wilson, 124 Ind. 472, 24 N. E. 974;Island Coal Co. v. Streitlemier, 139 Ind. 83, 37 N. E. 340.

The above sufficiently indicates the standard by which a complaint to quiet title must be measured, and, judged by this standard, the paragraph of complaint in question falls far short of stating a cause of action under the statute against said company.

As to the other appellants, the question as to the sufficiency of said first paragraph, viewed as a complaint to quiet title, is more doubtful, but we have concluded that it is not sufficient as to them. What the property is upon which said appellants have a deed of trust and mortgage, is altogether in doubt. We infer that “said property” is tangible in its character, since it is alleged to be “in and about the city of Seymour,” but we have looked in vain for any corresponding antecedent. So far as the assignment of hydrant rentals is concerned, it is to be considered that it is not alleged that a water plant has been constructed. In other words, it does not appear that there is any corporeal tenement out of which a rent could issue. We are not permitted to infer, in support of a barren allegation that there has been an assignment of hydrant rentals, that the assignment was of such a character as would, if valid, permit the assignees to proceed upon their own initiative to do any act to the prejudice of appellee's real estate. As we have seen, the statute provides that the action to quiet title is to be brought against one “who claims title to or interest in real property adverse to” the plaintiff, “for the purpose of determining and quieting the question of title.” Here the interest to which it is alleged that said appellants lay claim is not an interest in real property, but an “interest in said contract.” Such an interest might exist, and it might be adverse or opposed to the...