Shiras v. Ewing

• Decision Date: 05 March 1892
• Citation: Shiras v. Ewing, 48 Kan. 170, 29 P. 320 (Kan. 1892)
• Parties: WILLIAM H. SHIRAS v. C. T. EWING
• Court: Kansas Supreme Court

29 P. 320

48 Kan. 170

WILLIAM H. SHIRAS v. C. T. EWING

Supreme Court of Kansas

March 5, 1892

Error from Franklin District Court.

THE opinion states the case.

Judgment affirmed.

W Littlefield, for plaintiff in error.

J. W Deford, for defendant in error.

STRANG C.All the Justices concurring.

OPINION

STRANG, C.:

Action for damages.The plaintiff, who was also plaintiff below, a resident of the city of Ottawa, in this state, contracted with the Cherryvale Water & Manufacturing Company for a supply of water for the purpose of sprinkling his lawn, the use of the water to be regulated by the rules and regulations of the water company.The defendant, C. T. Ewing, the assignee and successor of the water company, by his agent, the manager of said water company, for the alleged violation of the rules and regulations of said company by the plaintiff, Mr. Shiras, in the use of the water supplied him by said company, shut off his supply of water for the period of about two months from August 10, 1887.The plaintiff alleges that the defendant unlawfully shut off his supply of water, and that because of the withdrawal thereof a number of his shade-trees died, and the grass on his lawn also died out.For these he claimed damages.The case was tried by the court and a jury, resulting in a verdict and judgment for the defendant.Motion for new trial was heard and overruled.

The contention of the plaintiff is, that the court misconstrued the contract between the parties.Plaintiff claims that because he had paid the contract price for the water in advance, and for the period of time during which it was shut off, the defendant had no right to shut off the water during said period, even though the plaintiff had violated the rules of the company for the regulation of the use of the water supply; that the doctrine of independent covenants applies, and the plaintiff, having complied with the principal covenant of the contract, was entitled to have the contract enforced as to the supply of water, leaving the defendant to his remedy by action for damages for any violation of the rules of the company in the use of the water supply.

We do not think the doctrine of independent covenants applies to the contract between the parties in this case in the sense in which it is sought to be applied by the plaintiff.The plant of the water company was constructed to supply the city of Ottawa and the inhabitants thereof with water.It necessarily has a large number of patrons.We do not think it reasonable or practicable to hold that for all the violations of the use, by its patrons, of the water supplied under its contracts therewith, the company shall be put to an action for damages.To so hold would be to deprive the company of any remedy, and leave it subject to the whim of each individual patron, so far as the use of the water supply is concerned,...