Templeton v. City of Wellington

• Decision Date: 11 December 1918
• Docket Number: (No. 1433.)
• Citation: 207 S.W. 186
• Parties: TEMPLETON v. CITY OF WELLINGTON.
• Court: Texas Court of Appeals

207 S.W. 186

TEMPLETON v. CITY OF WELLINGTON.

(No. 1433.)

Court of Civil Appeals of Texas. Amarillo.

December 11, 1918.

Appeal from District Court, Collingsworth County; J. A. Nabers, Judge.

Action by R. H. Templeton against the City of Wellington. From judgment sustaining general and special exceptions to first amended original petition, plaintiff appeals. Reversed and remanded.

R. H. Templeton, of Wellington, and Jos. H. Aynesworth, of Childress, for appellant.

C. C. Small, J. C. Mahan, and R. H. Cocke, Jr., all of Wellington, for appellee.

HUFF, C. J.

This is an appeal from a judgment sustaining general and special exceptions to the appellant Templeton's first amended original petition. Both parties apparently treat the case as having been disposed of by the general exception. It is difficult to determine just what cause of action appellant set up by his petition. It is asserted in this court by appellant that he was suing for a tort, but part of his petition clearly places his right of recovery upon a breach of a contract. In substance, the petition alleges that the city of Wellington entered into a contract with the Wellington Water, Light & Ice Company February 23, 1910, wherein it granted to said company a franchise to use the street and alleys of the town for the purpose of constructing, equipping, and operating a water system, etc., in the town, setting out in the petition a copy of the contract, one clause of which is as follows:

"The said company shall have the said franchise for and during 25 years from this date, exclusive to it and to it alone for any like purpose or purposes."

After the contract was entered into it is alleged the water company began to construct a system of waterworks, putting down wells, laying water mains, etc., and that on October 26, 1915, the appellant, in the course of trade, became owner of the system, and, relying on the contract and franchise, he made additional improvements and extensions. We believe it may be stated that it is alleged, inferentially at least, that the town permitted the use of the street and for a long time used the water of the company for public purposes or uses. It is alleged that the town, on or about the 26th day of October, 1915, breached its contract with the company by voting bonds to the extent of $27,500 and with the proceeds of the sale erecting a municipal water plant, thereby becoming a competitor to appellant, and he again specifically alleges:

"That said town of Wellington, on August 16, 1915, voted said bonds, and from that began making arrangements for putting in a system of waterworks in said town, which prevented plaintiff from further improving his system because with the city as his competitor, to which plaintiff had to contribute as a property owner, made it impossible to further improve said system and an entire loss of plaintiff's system."

It is alleged that the cost or the value of the system was $15,000. The above allegations, however, are followed by the general allegation:

"Plaintiff further says that he offered to sell his system, or any part thereof, to defendant, but defendant refused to buy same or any part thereof, and proceeded to destroy and confiscate same to its own use and benefit."

As part of his system he shows the erection of water tanks, putting down of wells, the laying of mains and pipe lines, which were made of cypress, and which, if kept filled with water, would last a long time; that the defendant ploughed up his pipe lines across streets and disconnected its line from his customers and caused great quantities of water to waste; that the pipes so ploughed up and broken up and the repair to same was $50, and the water wasted was of the value of $25. That without plaintiff's permission defendant proceeded to disconnect all customers from plaintiff and used and appropriated the lines of pipe to defendant's own use and benefit, some 32 in number, of the value of $160; that by taking up and breaking the pipe lines there will be one mile thereof, which is of the value of $5,000 without water in them, which renders them useless, and will render them valueless. He, however, alleges that the pipes or system cannot be repaired except at great cost. Unions would have to be procured and many joints replaced, and by reason of the kind of pipe and its location plaintiff has been damaged $5,000. It is alleged that in time of fire defendant would open plaintiff's mains and use great quantities of water, which it would not pay for or offer to do so, alleging the quantity so appropriated to be not less than 50,000 gallons, worth 50 cents per 1,000 gallons.

The first exception is general. (2) Special exception is to the effect that it is not alleged that the town was empowered to enter into a contract to furnish water to its own inhabitants nor to grant franchises or privileges to any person or corporation. (3) That plaintiff was not shown to be connected with the franchise or granted the right or privilege claimed, and that the contract...