State v. Butte City Water Co.

• Decision Date: 04 May 1896
• Citation: 44 P. 966,18 Mont. 199
• Parties: STATE ex rel. MILSTED v. BUTTE CITY WATER CO.
• Court: Montana Supreme Court

44 P. 966

18 Mont. 199

STATE ex rel. MILSTED v. BUTTE CITY WATER CO.

Supreme Court of Montana

May 4, 1896

Appeal from district court, Silver Bow county; William O. Speer Judge.

Mandamus on the relation of C.J. Milsted against the Butte City Water Company. From an order making the writ peremptory, respondent appeals. Affirmed.

Mandamus to compel the respondent, defendant, to turn on the water for general use at a certain house in Butte. The petitioner avers that he is a citizen and inhabitant of Butte; that the defendant water company is a corporation existing under the laws of Montana, engaged in supplying the inhabitants of Butte with water, under a certain franchise granted to the predecessor in interest of said corporation by the city of Butte; that by the terms of said franchise the corporation is granted the right to lay its mains in the streets and alleys of Butte, and is required to supply the inhabitants of Butte with water for general use, at specified prices; that the defendant corporation is in full use and enjoyment of the franchise; that one Murray is the owner of the premises involved; that on June 12, 1894, the said Murray gave to relator a written order to the defendant company, requesting it to turn on the water at the premises, and to charge the same to the relator; that the relator is the tenant in possession of said premises; that, on presenting said order relator tendered to the water company $4.50, the amount allowed by the said franchise as water rents for the said premises for three months in advance, and demanded that the company turn the water on at said premises; that the premises are supplied with water pipes connected with the mains, and in proper condition to use water supplied by the said company; that the mains are supplied with water, but that the said premises are without water, because the company refused to accept the tender, or turn the water on at said premises that there are no other means by which relator can secure water for said premises, unless his petition for a writ of mandamus is granted. The respondent company answered admitting that it is a corporation engaged in supplying the city of Butte and the inhabitants thereof with water, under and a franchise, as set forth in the relator's petition. The answer admits the ownership of Murray, but pleads "that, as whether your relator is now a tenant in possession of the said premises, respondent has no knowledge or information upon which to found a belief, and therefore denies the same." It admits the presentation of the order and the demand for water, but alleges that it refused to turn on the water by virtue of its rules and regulations, by which it can deal only with the owners of property requiring water to be turned on, or the agents of such owners. The rule invoked by respondents is as follows: "The water company contracts with owners of property, or their authorized agents only, and the property is invariably held for water rent. When water is turned off for any cause, it will not be turned on again until all back rent due on that building is paid in full. Money paid by tenants will be credited to the owner, but in so doing the company does not in any way release the owner from liability under this rule." Respondent further pleads that, when the premises involved were connected with the mains, the owner, Murray, signed an application, requesting a supply of water for the property, subject to the rules and regulations of the respondent company, and that, when the said application was filed, the rule heretofore set forth was in force, and the said Murray knew it was in force. Respondent says that, when the relator made his demand that the water be turned on for said premises, he was notified that the company would deal only with the owner or his agent, and would not contract with the tenants to supply water to rented premises, except on the personal responsibility of the owner, and informed relator of the contents of the rule herein before set forth. That the owner, Murray, at the time of relator's request that the water be turned on, refused to become personally responsible, or to allow his property to become responsible, for the payment of water rent; but that the respondent informed the relator that the money he tendered would be accepted, and the water turned on, but that the money so paid would be credited to the account of Murray, the owner of said premises. It is alleged then that the rule, as set forth, is reasonable and just, and without it the company cannot safely conduct its business; that, by virtue of its franchise, it supplies many of the inhabitants of Butte with water by meter measurement, and that, until the determination of the period for which a contract is made, and at which time the meters are read, it cannot determine what has been used, or to what amount the consumer is indebted to the company; that much property in Butte is occupied by tenants, and that, if respondent is obliged to deal with tenants, and look to them for pay of water, it would be subject to great loss and hardship; that it cannot, for reasons given, collect from the consumer in advance, and therefore is obliged to hold owners desiring water personally responsible.

Upon these pleadings the relator moved the court to make the alternative writ peremptory, notwithstanding the respondent's answer, for the reason that the matters set forth in said answer do not constitute a defense to relator's cause of action, or set forth any reason why said writ should not be made peremptory. The court granted this motion, and made the writ peremptory. The respondent appeals from the order sustaining the relator's motion to make the alternative writ peremptory.

Corbett & Wellcome, for appellant.

Geo. Haldorn and Oliver M. Hall, for respondent.

HUNT J. (after stating the facts).

The appellant contends that there was an issue of fact tendered by the answer of respondent upon the question whether relator was or was not a tenant in possession of the premises involved. But we think that the denial of respondent that "as to whether relator is a tenant in possession of the said premises, it had no knowledge or information upon which to found a belief, and therefore denies the same," was not good under Comp. St. 1887 (Code Civ. Proc.§ 89). The Code required a specific denial of the material allegations of the complaint controverted by the defendant. "If the complaint be verified, the denial of each allegation controverted must be specific, and be made positively, or according to the information and belief of the defendant." While there are cases and...