The City of Quincy v. Bull

Decision Date29 March 1883
Citation1883 WL 10216,106 Ill. 337
PartiesTHE CITY OF QUINCYv.LORENZO BULL et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of Adams county; the Hon. JOHN H. WILLIAMS, Judge, presiding.

This was a bill in chancery, brought by Lorenzo Bull, Edward Prince and William B. Bull, against the city of Quincy and its chief of police, to restrain their interference with the laying of water pipes by the complainants in streets of said city. The circuit court overruled a demurrer to the bill, and the defendants abiding by their demurrer, the court made a decree in favor of the complainants, enjoining such interference, which decree, on appeal to the Appellate Court for the Third District, was affirmed, and the city appealed to this court.

The bill sets forth, in substance, that in the spring of 1873, the city of Quincy being without water works, and having no supply of water to extinguish fires, except such as was contained in public cisterns distributed here and there in the business portions of the city, established the so-called ““temporary pumping works,” these consisting of a pump and boiler set up in a pumping house built by the city on the edge of the Mississippi river, and other property used in connection therewith. The city laid less than half a mile of pipe to connect with said pump, the pipe so laid extending from said river up Main street, to the corner of Fifth and Main streets. Through this pipe it was intended to pump water from the river into a few public cisterns which could be reached in this way; that said works soon proved wholly inadequate, and there was a desire for a general system of water works to be established in the city, whereupon the city council began to negotiate with complainant Prince to induce him to construct water works in the city, the city having no money to build with itself, and being indebted beyond the five per cent limit of the constitution, could borrow none; that the negotiations with Prince resulted in an agreement between Prince and the city of Quincy, based on the terms of the ordinance next mentioned; that on August 7, 1873, the city council of the city passed an ordinance, entitled “An ordinance to provide the city of Quincy with water.” The bill sets out the ordinance at length. By section 1 thereof the exclusive right to construct, maintain and operate water works in Quincy is given to Prince for thirty years. By section 9 he is given the exclusive right to sell water in the city for municipal and private use, with a proviso that such grant should not deprive any one from hauling water from the river and selling, as theretofore. Section 11 is as follows:

Sec. 11. The city of Quincy grants to said Prince the right of way in all streets and alleys in the city, and all other property over which said city has or may have control, for the purpose of laying mains and services, valves, valve boxes, extra castings and necessary main and service appendages, said Prince being in all cases responsible for all damages arising from said work, and in case of alteration of street grades the city paying said Prince the amount of damage done him by such alteration.”

By section 2 the city conveys to Prince the boiler, pump, pump house, etc., and other things purchased by the city for temporary pumping works, Prince therein agreeing to pay the city its actual outlay in said works. By section 3 Prince agreed to cover a certain portion of the business part of the city with mains, and have water turned on in one hundred days from his acceptance of the ordinance. Section 19 provides that when Prince shall, by an instrument in writing, filed with the city comptroller, signify his acceptance of the terms and provisions of the ordinance, then the ordinance, together with such written acceptance, shall constitute a contract between the city and Prince. By other sections of the ordinance Prince agrees that if the city shall order mains, he will obey the order of the city in that behalf, the condition of the city's ordering mains being, that one fire hydrant shall be ordered at each cross street intersection, for each of which fire hydrants the city agrees to pay Prince $200 a year, in monthly payments.

The bill alleges acceptance by Prince of the ordinance as provided, on August 11, 1873, and compliance by him with all the requirements of the ordinance on his part, and that on or before October 1, 1873, he paid the city between seven and eight thousand dollars for said temporary pumping works; that orders for extensions of mains, and the location of hydrants, were given by the city at different times during 1874, 1875, 1877, and, lastly, on October 6, 1879, and these were obeyed by Prince, until, when the last order had been obeyed and fulfilled, Prince had laid seven miles of mains, and located seventy-seven hydrants, and these were located in and furnished a fire protection to the business and more thickly settled residence portions of the city; that Prince assigned portions of his interests to his co-complainants, and at the commencement of the suit the complainants owned the water works built under the ordinance; that complainants had a large number of private consumers of water, and had built up an extensive and valuable business in supplying factories, business houses, hotels, stores, etc., in Quincy; that on March 12, 1881, the city council passed an ordinance repealing said ordinance of August 7, 1873, which was without the consent of the complainants; that they went on furnishing water, and the city continued to use it as before, the city council, at the time of the repealing ordinance, passing a resolution that the city would pay a just and equitable compensation for whatever use the city should make of the hydrants of the water works company; that the city being indebted to complainants for water furnished, and three different suits having been instituted for the recovery of amounts due, and the city having set up, by way of defence to each suit, that the quality and quantity of water furnished by complainants were not such as called for by the ordinance, and different members of the city council and the mayor having, at different times, complained of the quality of water furnished, the complainants, in the fall of 1881, commenced the construction of, and partially completed, a large reservoir, of 16,000,000 gallons capacity, on ground of their own, at the highest point in said city of Quincy, at an expense of many thousand dollars; that the only source of supply for such system of water works, as existing when said reservoir was commenced, was two large tanks, situated at Twelfth and Broadway streets, in said city; that without a reservoir there was no way of improving the quantity and quality of the water, and that for a reservoir no point so good as that where complainants had located their reservoir could be found; that owing to the distance of said reservoir from the nearest point of their system of water works, it became necessary to buy and lay a large amount of new mains and pipes to connect the reservoir with their water works; that at the same time, complainants, being requested by many citizens so to do, determined to extend their system of water works, to afford the convenience of water to many inhabitants living where their works had not, up to that time, extended, and to connect with said reservoir and make said extensions it became necessary for complainants, in the fall of 1881, to buy a large amount of new pipe, which they, relying on the faith of the ordinance of August 7, 1873, did, at an expense to themselves of $40,000; that said pipe began to arrive in January, 1882, and upon arrival of the same had been distributed on and along the line in which their extension was to be made, and that in distributing the pipe, the same had been done so as to interfere as little as possible with travel or with the individuals dwelling on the streets; that on January 16, 1882, the city council passed ordinance No. 119, and on February 20, 1882, ordinance No. 121. Each ordinance is in substance and effect the same, and declares the things which complainants were authorized to do under the ordinance of August 7, 1873, a nuisance, and requires the police of the city to arrest any one engaged in placing any obstruction whatever in the streets, or in digging up the streets, and to seize and move away any such obstruction, unless the leave of the mayor or the city council, entered of record, was first had for the doing of the same; that complainants afterward, in a petition to the city council, requested leave to lay pipes along the streets of their contemplated extension, but their petition was disregarded, no action being taken thereon, except to order it filed; that the pipe ordered by complainants still continuing to arrive after the passage of the two last named ordinances as before, their contractor proceeded with the hauling, the result being a number of prosecutions under the ordinances last aforesaid, the arrest of the teamsters doing the hauling, by the police, and the seizure and removal by the police of the pipe of complainants; that the city threatened to continue arrests under said ordinances, and to enforce them, even by force, if necessary, and complainants being required to employ a great many men, and the city threatening to arrest them as often as there was any digging in the streets, to avoid these interruptions, which made, and would make, the further prosecution of their business impossible, and to prevent innumerable suits, an injunction was asked to restrain interference in making use of any of the streets of the city for the purpose of laying water pipes to connect complainants' water works with the reservoir mentioned, or for the purpose of making extensions of their system of water works, or of connecting any...

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38 cases
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