Tobin v. Frankfort Water Co.

• Decision Date: 27 March 1914
• Citation: 164 S.W. 956,158 Ky. 348
• Parties: TOBIN v. FRANKFORT WATER CO.
• Court: Kentucky Court of Appeals

164 S.W. 956

158 Ky. 348

TOBIN v. FRANKFORT WATER CO.

Court of Appeals of Kentucky.

March 27, 1914

Appeal from Circuit Court, Franklin County.

Action by Lucille Tobin against the Frankfort Water Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Robt. B. Franklin, of Frankfort, and Robt. C. Talbott, of Lexington, for appellant.

D. W Lindsey, Jr., Hazelrigg & Hazelrigg, and John B. Lindsey, all of Frankfort, for appellee.

CLAY C.

Plaintiff Lucille Tobin, brought this action against the Frankfort Water Company to recover the value of certain personal property which was destroyed by fire. She bases her action on the claim that, under the contract between the city and the water company which was made for the use and benefit of the inhabitants and residents of the city, it was the duty of the water company to keep the fire hydrants in proper repair, and that on the occasion when her property was destroyed one of the hydrants was in a defective condition, and that the fire department arrived in plenty of time to put out the fire, and could and would have done so had it not been for the defective condition of the hydrant. A demurrer was sustained to the petition, and the petition dismissed. Plaintiff appeals.

Accompanying the petition is a copy of an ordinance granting to the water company a franchise to construct and operate in the city a system of waterworks for supplying the city and its inhabitants with water "for public and private purposes." The ordinance was accepted by the water company, and constitutes the contract between it and the city. The material parts of the ordinance are as follows:

"Section 1. It being expedient and necessary to provide a supply of water to the city of Frankfort and its inhabitants for public and private purposes, and it being inexpedient for the said city to procure and furnish the said supply, the franchise and license is hereby granted to the Frankfort Water Company of Frankfort, Kentucky, a corporation organized and existing under the laws of the state of Kentucky, and its successors and assigns, in perpetuity, but subject to the forfeiture hereinafter provided to construct and operate in and near the said city waterworks for supplying the city of Frankfort and the inhabitants of the said city and of its vicinity with water for public and private purposes, and use within the present and future limits of the city of Frankfort the streets and other public ways and places and the Kentucky river, for the purpose of placing, taking up and repairing mains, pipes, hydrants and other apparatus for the supply of water."

Section 6 is as follows: "The said company shall furnish and set, at the places hereinafter mentioned, and connect with the said mains by branch pipes of the diameter of six inches each, one hundred fire hydrants of modern and appropriate pattern and good efficiency, each having two nozzles of the diameter of two and one-half inches each, their thread fitting the hose couplings now used by the fire department of the city of Frankfort. The said hydrants shall be located at the following named places: [Here follow names of places where hydrants are to be located.]

"Sec. 7. There shall be no unreasonable obstruction of the public ways of the said city by the said company, in constructing the said works, or in placing, taking up or repairing any main, hydrant or other structure or device for the service of water; and the said company, after using the said public ways, shall restore them, within a reasonable time, to as good condition as before, and shall hold the said city harmless from any and all damages arising from negligence or mismanagement of the said company or of its employees, in constructing, extending or operating the said works.

"In all street excavations the said company shall keep red danger lights burning at night along the line of the said excavations, at least one light every one hundred and fifty feet, and shall erect barricades at the ends of the excavations, and at all street crossings on the line of the said excavations."

By section 11 the city rents the 100 hydrants for a period of 25 years. It further agrees to use the hydrants carefully, and to pay the company for any injury which may happen to them when used by any officer or servant of the city, or any member of its fire department. The rental value for each hydrant is fixed at $62.50 per annum.

"Sec 12. The fire hydrants so rented of the said company shall be used for the extinguishment of fires only, and for flushing gutters and sewers. All flushing shall be done through a hose and fire nozzle, and for such purpose no one hydrant shall be used exceeding, thirty minutes per week, nor shall more than one hydrant opening be used for such purpose at any one time,...