Tacoma Hotel Co. v. Tacoma Light & Water Co.

• Decision Date: 10 December 1891
• Citation: 3 Wash. 316,28 P. 516
• Court: Washington Supreme Court
• Parties: TACOMA HOTEL CO. v. TACOMA LIGHT & WATER CO.

28 P. 516

3 Wash. 316

TACOMA HOTEL CO. v. TACOMA LIGHT & WATER CO.

Supreme Court of Washington

December 10, 1891

Appeal from superior court, Pierce county; JOHN BEVERLY, Judge.

Action by the Tacoma Hotel Company against the Tacoma Light & Water Company to restrain defendant from shutting off the supply of water from plaintiff's premises. Plaintiff obtained judgment upon demurrer to the answer, and defendant appeals. Reversed.

Galusha Parsons, for appellant.

W Lair Hill and Thad. Huston, for respondent.

SCOTT J.

The appellant is the owner by assignment of a grant and franchise by ordinance of the city of Tacoma, granting to John W Sprague, his associates and assigns, "the right and privilege of supplying the city of Tacoma and the inhabitants thereof with pure and fresh water, for which they shall be and are hereby authorized to charge the consumers thereof reasonable rates." The appellant, operating under said grant, supplied to the premises of the respondent water for and during the three months ending October 1, 1890, for which supply it demanded the sum of $478.10, which the respondent refused to pay. The appellant added a penalty to said sum, increasing the same to $502, and again demanded payment, and, upon the continued refusal of the respondent to pay appellant, threatened to shut off and stop supplying the water for respondent's premises; whereupon respondent brought this suit to enjoin the appellant from so doing.

The complaint sets forth the corporate character of the parties to the action; the plaintiff's ownership of the premises described; that the building thereon is a large and expensive hotel, and "that the use of the water furnished by the defendant is absolutely necessary to the use and occupancy of said hotel for the purposes for which it was constructed;" the demand of the sum of $502 claimed; an allegation that said charge is unreasonable, excessive, and unlawful; an allegation that the plaintiff is and at all times was ready and willing to pay a reasonable sum; and alleging the purpose of the defendant to shut off the water, and deprive plaintiff of its use, thereby causing the plaintiff great and irreparable injury, etc. The answer denies that the charge is unreasonable, excessive, or unlawful; denies the readiness of the plaintiff to pay a reasonable sum; admits that it was and is defendant's purpose to deprive the plaintiff of the use of its water for said hotel and premises until it should pay the reasonable charges of defendant for the water furnished it for the quarter ending on the 1st day of October, 1890; denies that it would cause plaintiff great and irreparable injury, etc.; and contains an affirmative defense, wherein the corporate capacity of the defendant is fully set forth; also its ownership of the water franchise, and its rights and authority thereunder. It also contains the following allegations: "(4) That for the transaction of the business for which it was incorporated, and to enable it to furnish water as in said ordinance provided to the said city of Tacoma and its inhabitants, at reasonable rates, it adopted, among others, a rule in the words following, to-wit: 'Sec. 19. Water-rents will be due and payable quarterly on the first days of January, April, July, and October. In case of non-payment of rents within ten days after they are due, five per cent. additional will be added, and, if the rents are not paid within fifteen days after they are due, the water will be shut off from the premises, as provided for in sections 20 and 21.' (5) That to secure compliance with said rules, without which the proper management of the business of said company would have been wholly impracticable, it adopted a further rule, as follows: 'Sec. 20. On failure to comply with the rules and regulations established as a condition to the use of water, or to pay the water-rents in the time and manner hereinbefore provided, the water may be shut off until payment is made of the amount due, with fifty cents in addition for the expense of turning the water off and on.' (6) That said rules were made a part of the contract with all persons applying to be furnished with water by this defendant. (7) That prior to the 6th day of May, 1890, this defendant established the following rates as the rates to be paid by persons desiring that they should be supplied with water by meter, to-wit: Meter rates from 1,000 to 50,000 gallons per month per 1,000 gallons, $.25; meter rates, from 50,000 to 100,000 gallons per month, per 1,000 gallons, $.20; meter rates, all over 100,000 gallons per month, per 1,000 gallon, $.15. That said rates were reasonable and far below the rates usually charged by water companies in the United States. That the said rates so charged were well known to the directors and managing officers of this plaintiff. That, well knowing the rates of charges of this defendant for water furnished by measurement to the inhabitants of said city, plaintiff applied in writing to this defendant to furnish water for the use of the said hotel, and thereupon agreed to comply with the rules and regulations of this defendant in respect thereto; and that, in default thereof, or of prompt payment at the rates so established, or of a failure to comply with the said rules and regulations, the water might be turned off from the premises so supplied, and discontinued until the bills for water furnished previously thereto should have been paid. (8) That in pursuance of said request, and in accordance with its rules and regulations, defendant furnished water for the use of said hotel for the months of July, August, and September, 1890, to the amount of 4,780,500 gallons. That at the established rate when said water was so furnished, to-wit, at the rate of fifteen cents for 1,000 gallons, it would have amounted to the sum of seven hundred and seventeen and 12-100 dollars, ($717.12,) which sum would have been a reasonable and just charge therefor. (9) That, nevertheless, said defendant having, after the making of said application, reduced its charges below the established rates therefor, as they then existed, to consumers whose consumption should exceed 200,000 gallons per month, to-wit, to the sum of ten cents per thousand gallons, it voluntarily, and without having agreed so to do, reduced the rate of charges to this plaintiff from fifteen cents to ten cents per thousand gallons. (10) The defendant presented to plaintiff its said bill for four hundred and seventy-eight dollars [28 P. 518] and 10-100, ($478.10,) and, plaintiff having wholly neglected and refused for fifteen days after the same became due to pay for the water so consumed by it, and as provided by the said rules, this defendant, in accordance with its rules and regulations, to-wit, with said rule nineteen, added to the said bill the sum of five per cent. (5) of the amount thereof, and presented to this plaintiff a bill therefor, to-wit, for the sum of five hundred and two dollars, ($502.00,) as stated in said complaint, which sum still remains wholly unpaid. (11) And this defendant further says that it has at all times been, and is now, ready and willing to furnish to the said plaintiff all the water that it may require or demand for its use, at reasonable rates, and below the rates usually charged by water companies elsewhere for the like service, to-wit: If the same exceed 200,000 gallons per month, at the rate of ten cents per thousand gallons, upon condition that the plaintiff pay for the same as provided by the established and published rules of this defendant, and that it conform to such rules, all of which the said plaintiff, in writing, at the time of its application to be supplied with water, agreed to do." The plaintiff demurred to the answer on the ground that it did not state facts sufficient to constitute a defense. The court sustained the demurrer, and, upon the refusal of the defendant to plead further, rendered a judgment and decree for the plaintiff.

The controversy is over the reasonableness of the rules and the rate charged, and as to whether appellant had a right to stop supplying the water upon the refusal of respondent to pay the sum in arrear. It is contended by appellant that the demurrer admits not only that the rules were reasonable, but that it was impracticable for appellant to carry on its business without the rules which the answer alleges it had adopted, and that the defendant at the time of its application knew what the rules were, and agreed to be bound by them, and that it is likewise admitted that the rate charged was reasonable. The respondent claims there...