State Ex Rel. De Burg v. Water Supply Co. of Albuquerque.

• Decision Date: 28 April 1914
• Docket Number: No. 1595.,1595.
• Citation: 140 P. 1059,19 N.M. 36
• Parties: STATE EX REL. DE BURGv.WATER SUPPLY CO. OF ALBUQUERQUE.
• Court: New Mexico Supreme Court

19 N.M. 36

140 P. 1059

STATE EX REL. DE BURG

v.WATER SUPPLY CO. OF ALBUQUERQUE.

No. 1595.

Supreme Court of New Mexico.

April 28, 1914.

Syllabus by the Court.

Public utility companies have a right to adopt and enforce reasonable rules and regulations for their security and convenience and enforce compliance therewith by refusing or discontinuing the service; but such rules must be reasonable, just, lawful, and not discriminatory.

Where a contract is entered into between a city and a water supply company for the benefit of the people of the city, and under which the people are entitled to certain rights, benefits, and privileges, a construction of the meaning of ambiguous and doubtful provisions of the contract by one consumer or beneficiary is not binding upon other consumers or beneficiaries, not shown to have acquiesced in or assented to such construction.

Where a franchise granted to a water company provides that the company shall have the right “to make rules and regulations, to be approved by the city council,” and the company contends that it has adopted and enforced a rule which required the consumer to pay the cost of making connection with its mains, before the question can arise as to whether the rule in question amounted to a construction of the contract by the city, it is incumbent upon the company to show that the city council gave its approval to the same.

Where a franchise, under which a public utility company operates, imposes a burden upon the company, any rule or regulation adopted by the company, by which it attempts to shift the burden upon the consumer, is unreasonable and unjust and will not be enforced.

Where the meaning of a grant or contract regarding any public franchise is ambiguous or doubtful, it will be construed favorably to the rights of the public.

Where a franchise, under which a water supply company operates, requires it to furnish water to private consumers at fixed rates, it must provide the necessary service pipe from the main line in an abutting street to the consumer's property line at its own expense, unless the franchise imposes this burden upon the consumer.

Where a municipality operates its own water supply system, it is not under contractual obligations to lay the service pipes from the curb to its main; hence a rule which requires the consumer to assume the burden is reasonable. But where, under a contract and franchise, this duty devolves upon the holder of the franchise, such a rule is unreasonable.

Appeal from District Court, Bernalillo County; H. F. Raynolds, Judge.

Mandamus by the State, on the relation of Dolores Otero de Burg, against the Water Supply Company of Albuquerque, a corporation. From a judgment for defendant, relator appeals. Reversed, with directions.

Where a municipality operates its own water supply system, it is not under contractual obligations to pay the service pipes from the curb to its main, hence a rule which requires the consumer to assume the burden is reasonable. But where, under a contract and franchise, this duty devolves upon the holder of the franchise, such a rule is unreasonable.

John C. Lewis, of Albuquerque, for appellant.

A. B. McMillen, of Albuquerque, for appellee.

ROBERTS, C. J.

The material facts in this case are as follows: The relator is the owner of a lot abutting on North Thirteenth street in the city of Albuquerque, N. M. The respondent is a public service corporation, owning and operating a water system in the city of Albuquerque, under a franchise granted it by the city council of said city, pursuant to a vote of the qualified electors, and, under a contract entered into between said city and respondent, as authorized and directed by said franchise. A main of respondent's waterworks system is laid along North Thirteenth street in front of relator's lot.

The relator erected a dwelling on her said lot and equipped the same with all the fixtures necessary for water service and laid a pipe from said dwelling to the property line of said lot at its junction with North Thirteenth street; thereupon she made a demand upon respondent to connect its water main with the pipe laid by her to the property line of said lot. This respondent refused to do, unless relator would pay the expense of making such connection. Upon respondent's refusal, relator filed a petition for a writ of mandamus to compel it to make said connection. Upon issue joined, the cause was heard by the court, and the writ was denied, from which judgment relator appeals.

The sole question presented by this appeal is whether the property owner or the water company must defray the expense of laying the service pipe from the main to the property line and making the necessary connection with the main. The answer to the question necessarily depends upon the construction to be placed upon the franchise and contract under which the water company operates, for it is clear that the contracting parties might legally stipulate that this burden should be borne by the consumer, or, on the other hand, that the public service corporation should assume it. In its answer to the alternative writ, the respondent alleged that it had, during the whole of its present franchise, adopted and enforced as one of its rules and regulations, and has at all times required, as a condition precedent to being supplied with water, that the consumer should lay his service pipes to the mains of respondent and pay the reasonable expense of connecting the same therewith; but, if the contract and franchise under which respondent operates, imposes this duty and expense upon it, it must be apparent that the rule in question would be unreasonable and void and without any vitality whatever.

[1] Public utility companies, it is true, have a right to adopt and enforce reasonable rules and regulations for their security and convenience, and enforce compliance therewith by refusing or discontinuing the service. But the rules must be reasonable, just, lawful, and not discriminatory. If they be not so, their enforcement will be enjoined. If a privately owned water company, organized for profit, in which the citizens of a municipality do not participate, undertakes and agrees with the city that it will, at its own expense, carry the water to the lot line of its consumers, and there delivers the same, manifestly it cannot escape this burden by adopting a rule which would impose the expense upon the consumer. Such a rule would be unreasonable, unlawful, and unjust, and no consumer would be required to comply with it in order to secure the service.

[2] Respondent contends, however, that all its consumers, numbering some 2,500 or more, have complied with the rule and have construed the contract as imposing the burden upon the consumer. If such be the case, however, it would not affect the rights of the relator herein, because there is no showing that she has ever so construed the contract or acquiesced in the rule. Where a contract is entered into between a city and a water company, for the benefit of the people of the city and under which the people are entitled to certain rights, benefits, and privileges, a construction of the meaning of ambiguous and doubtful provisions of the contract by one consumer or beneficiary would not be binding upon other consumers, or beneficiaries not shown to have acquiesced in or assented to such construction. And the fact that certain consumers have complied with, or failed to object to, a rule of the water company, which was invalid and unenforceable, would not be binding upon other consumers or patrons.

[3] It is further contended by respondent that the city and the company have placed a construction upon the contract, adverse to relator's contention, and, such being the case, the court should give effect to such interpretation of the provision in question. It is well settled that the construction given a contract by the parties interested, especially where it has covered a long period of years, will be controlling unless the contract is so plain against such construction that there could be no reasonable doubt upon the question. Lowber v. Bangs, 2 Wall. 728, 17 L. Ed. 768; Cavazos v. Trevino, 6 Wall. 773, 18 L. Ed. 813; Bronson v. Rodes, 7 Wall. 229, 19 L. Ed. 141; Chicago v. Sheldon, 9 Wall. 50, 19 L. Ed. 594; Insurance Co. v. Dutcher, 95 U. S. 273, 24 L. Ed. 410; Fraser v. State Savings Bank et al., 137 Pac. 592. But respondent has failed to point out wherein the city has construed this provision of the contract, unless it be upon the assumption (a) that the water company has, at all times during the existence of the franchise, enforced a rule which required the consumer to pay the cost of making the connection with respondent's water mains and laying the pipe from the curb to the main, as alleged in its answer, or (b) because the city itself has paid such expense, where it required water for city purposes.

It is sufficient answer to the first contention to state that neither the answer nor the proof show that the rule in question was approved by the city council. The franchise gives to the company the right “to make rules and regulations, to be approved by the city council.” “A material fact, if not alleged, is presumed not to exist.” 31 Cyc. 86. Before the question could arise as to whether the rule in question amounted to a construction of the contract by the city, it would be incumbent upon respondent to show that the city council gave its approval to the same. The fact that the company had adopted and enforced such a rule, without the concurrence and acquiescence of the city council, would not be tantamount to a construction of the contract by the city. Had the proof supplied the defect in the answer in this regard, the omission would doubtless have been cured by the judgment (31 Cyc. 763); but there was no proof whatever upon the question, as shown by the bill of exceptions, and, such being the case, the omission in the answer would...