Stillwater Water Company v. City of Stillwater

• Decision Date: 15 July 1892
• Citation: 52 N.W. 893,50 Minn. 498
• Parties: Stillwater Water Company v. City of Stillwater
• Court: Minnesota Supreme Court

52 N.W. 893

50 Minn. 498

Stillwater Water Company v. City of Stillwater

Supreme Court of Minnesota

July 15, 1892

July 11, 1892, Argued

Appeal by plaintiff, the Stillwater Water Company, from a judgment of the District Court of Washington County, Williston, J entered March 18, 1892.

On April 5, 1880, the City Council of the City of Stillwater passed an ordinance granting to plaintiff, the Stillwater Water Company, a corporation, the right to lay its water pipes in and through the streets of the city. Section 4 of this ordinance is set out in full in the opinion. Part of the seven miles of pipes provided for in Section 4 of the ordinance were laid along streets, the grades of which had been previously established but had not been graded. After the pipes were laid, the city re-established the grades on a lower plane than at first established, and graded the streets on the grade as re-established. The plaintiff's pipes were thus exposed to the frost, and it was compelled to and did lower and relay its pipes, and lower and change its hydrants. This was done after demanding of the city that it lower and relay the pipes, and its refusal to do so. Plaintiff commenced this action to recover of the defendant the City of Stillwater, the expenses of thus relaying the pipes and changing the hydrants; claiming, first, that Section 4 of the ordinance applied as well to the seven miles of pipes therein provided for that might be laid in ungraded streets, as to future extensions that might be ordered by defendant; and second, that without the proviso in Section 4 the city is liable in damages for changing the grades of its streets, if the plaintiff is thereby compelled to relay its pipes. The case was tried February 28, 1891, and a decision filed in favor of defendant, October 10, 1891. In a memorandum filed with the decision, the court said:

"Section 4 of the ordinance cannot be given the construction claimed by plaintiff. The first paragraph is complete in itself and has no necessary connection with the succeeding provisions of the section. By the second paragraph, the Council may order extensions of the pipes or mains, provided that if the company shall be required to lay its mains in any ungraded street, whenever such street is graded, the city shall pay the cost of relaying such pipes with proper reference to the established grade. This paragraph and the proviso apply only to the extensions outside of the seven miles provided for in the first paragraph. The mains in question in this action are a part of the seven miles.

"By Sp. Laws 1870, ch. 3, the city was in express terms authorized to grade, repair or otherwise improve the streets of the city. The power so vested in the city was a continuing one, and gave the right to change or re-establish the grade of any other street of the city, and reduce such street to the established or reduced grade. Goszler v. Corporation of Georgetown, 6 Wheat. 593; 2 Dill. Mun. Corp. 685 686, and cases cited. An action will not lie against a city for consequential injuries to property adjacent to a public street, caused by a change of the established grade of the street, lawfully made in a proper manner. Henderson v City of Minneapolis, 32 Minn. 319; Genois v. City of St. Paul, 35 Minn. 330; Rakowsky v. City of Duluth, 44 Minn. 188. When the franchise was granted to plaintiff, defendant retained the power to grade and repair its streets, and the plaintiff accepted the franchise subject to that right. Neither party was liable to respond in damages to the other. Ports-mouth Gas-Light Co. v. Shanahan, 65 N.H. 233, (19 A. 1002;) National Water Works Co. v. City of Kansas, 28 F. 921; In re Deering, 93 N.Y. 361; Rockland Water Co. v. City of Rockland, 83 Me. 267, (22 A. 166.")

Judgment was entered on the decision, and plaintiff appealed.

Judgment affirmed.

Fayette Marsh, (Clapp & Macartney, of counsel,) for appellant.

The court erred in holding that an action for damages could not be maintained against the City of Stillwater on account of a change made in the grade of a street, thereby exposing plaintiff's water mains to the frost, and rendering it necessary to relay them. Dyer v. City of St. Paul, 27 Minn. 457; Henderson v. City of Minneapolis, 32 Minn. 319. The ground of recovery in this action is, that having contracted with the plaintiff for a supply of water at certain points, the city must not in any way interfere with the performance of such contract, and if it does so, it must respond in damages. Such is the well established rule between private parties. The contract is to do a thing. The law forbids the other contracting party from interfering with its performance. Devlin v. Second Ave. R. Co., 44 Barb. 81; Danley v. Williams, 16 Wis. 581. That the franchise of plaintiff is a contract between it and the city, is unquestionable. New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650. Neither the Legislature nor the city could pass any law impairing the obligation of this contract. Gun v. Barry, 15 Wall. 610; Edwards v. Kearzey, 96 U.S. 595; Minneapolis Gas-Light Co. v. City of Minneapolis, 36 Minn. 159. The mere fact that the city had power to change the grades of its streets, does not give it the power to thereby render the contract of plaintiff worthless, at its pleasure.

The last proviso of Section 4 of the ordinance must be held to apply to the entire section. The word "required" refers as well to obligations imposed by the contract itself, as to obligations which might afterwards arise to lay extensions under the terms of the contract.

Was the lowering of the established grades of these streets and the reduction of the surface of the streets to such re-established grades, a breach of the contract on the part of the defendant? We contend that the law raised, by implication, an agreement on the part of the defendant, to leave the surface of the streets in such condition that the plaintiff would not be interfered with in the performance of the contract on his part. Hambly v. Delaware, M. & V. R Co., 21 F. 541; Hudson Canal Co. v. Pennsylvania Coal Co., 8 Wall. 276. If the defendant had refused to allow plaintiff to lay its mains in some street where they should have been laid according to the contract, it would clearly have been liable in damages. What distinction can be drawn between such a state of facts and the facts here disclosed? The defendant clearly...