Town of Bristol v. Bristol & Warren Waterworks

Decision Date28 March 1896
CourtRhode Island Supreme Court
PartiesTOWN OF BRISTOL v. BRISTOL & WARREN WATERWORKS et al.

Suit by the town of Bristol against the Bristol & Warren Waterworks and others. Heard on demurrer. Overruled.

Comstock & Gardner, for complainant.

Arnold Green and Benjamin M. Bosworth, for respondents.

TILLINGHAST, J. The substantial allegations of the bill, in so far as the same are material to the questions raised by the demurrer, are as follows, viz.: (1) That on the 30th day of January, 1882, the town of Bristol entered into a contract with the respondent George H. Norman for the construction of a system of waterworks for supplying pure water to said town. (2) That by said contract said town granted to said Norman, his successors and assigns, the exclusive right and use of the public streets, squares, and lanes of said town for the purpose of laying water pipes, and of continuing the same therein, and selling water, for the period of 50 years from and after the date of said contract, or until the town should avail itself of the option of purchase reserved to it in said contract; said town agreeing to pay to said Norman, his successors and assigns, the sum of $3,000 each year for the use of hydrants and the water required for fire purposes in said town, and, in addition thereto, a sum each year equal to the amount of all the taxes assessed in said town by said town or the state of Rhode Island on said waterworks, for a supply of water for the Rogers Free Library, the public schools, town house, town hall, fire-engine house, hook and ladder house, police station, and four drinking fountains; and that said Norman, in consideration thereof, agreed to construct a complete waterworks for the supply of said town for the purpose of domestic, manufacturing, and other uses, to lay pipes in all the streets in the compact part of the town, and connect fire hydrants with said pipes, and to at all times maintain a head of water not less than 125 feet above high tide; and also to furnish certain drinking fountains, and at all times maintain an ample supply of water for domestic and manufacturing purposes, at rates not higher than charged for the same at Newport, R. I. It was further provided in said contract, and as a part of the consideration for the privileges, grants, and payments aforesaid, that said town of Bristol might, at its option, purchase said waterworks and all pipes, reservoirs, pumps, and other property rights and appurtenances connected with said works, at any times after 10 years and within 15 years from the date of said contract, for a fair and reasonable price, to be agreed upon by said town on the one part and said Norman, his successors or assigns, on the other part, or fixed by a majority of arbitrators appointed for the purpose, one by said town, one by said Norman or his representative, and the third by the two so chosen. (3) That, shortly after the making of said contract, said Norman made and entered into another contract with the town of Warren for the construction of waterworks for the supplying of that town with water, and that, after the making of said contracts with said towns of Bristol and Warren, said Norman proceeded to construct a single system of waterworks for the supplying of water to both said towns; and that from thence hitherto he has supplied said town of Bristol and the inhabitants thereof with water, and has received payment therefor, in accordance with the terms of said contract. (4) That, soon after the completion of said system of waterworks, said Norman conveyed the same, and all his right, title, and interest therein, to the Bristol & Warren Waterworks, a corporation created by the general assembly, by deed duly recorded in said towns of Warren and Bristol. (5) That the qualified electors of said town of Bristol, at a meeting duly called and held after the expiration of 10 years and within 15 years from the date of said contract between the town of Bristol and said Norman, passed a vote whereby it voted to purchase of the Bristol & Warren Waterworks the said' waterworks and other property, rights, and appurtenances belonging thereto, in accordance with the option aforesaid, and appointed a committee of said town, with authority to agree with said company upon a fair and reasonable price for such waterworks, and, in default of such agreement, to appoint an arbitrator in behalf of said town, in accordance with the terms of said contract, and to take such legal and other proceedings as might be necessary to procure for said town of Bristol the title to said waterworks; and that said committee, immediately after its appointment, notified said Bristol & Warren Waterworks of the aforesaid action of said town, and requested said corporation to agree with them, as representing said town, upon a fair and reasonable price to be paid for said waterworks, and also gave such notice and made such request to said respondent George H. Norman; but that he and the Bristol & Warren Waterworks expressly refused, and still refuse, to attempt to agree with said town upon a fair and reasonable price to be paid for such waterworks, and refuse to appoint an arbitrator to determine a price to be paid for such waterworks, in accordance with the terms of said contract, and also refuse to convey said waterworks to said town of Bristol. (6) That unless the complainant shall be enabled to purchase said system of waterworks said Norman and said waterworks company and its assigns will, in accordance with the terms of said contract, continue to have and enjoy the exclusive right and privilege of maintaining a system of waterworks in said town of Bristol for the term of 50 years, as aforesaid, notwithstanding the vote of said town to purchase the same, and in violation of the conditions of said contract. The prayer of the bill is that it may be ascertained, by reference to a master, or in such other manner as the court may deem proper, how much and what part of said waterworks system the said respondents, or either of them, can convey to the complainant for use in connection with a system of waterworks for said town of Bristol, aud how much and what part of the same it is incumbent upon the complainant to purchase and pay for, and also what is fair and reasonable price to be paid for the same; and that said respondents, either or both of them, as the court may determine to be proper and necessary, may be ordered by decree of the court to convey to the complainant said waterworks, or such part thereof as it may be found that they, or either of them, are able to convey and should so convey, upon payment by the complainant of such fair and reasonable price as may be determined, which price the complainant is ready and willing and offers to pay; and for other relief.

To this bill of complaint the respondents respectively have demurred. The ground upon which the respondent Norman bases his demurrer is that it appears that, previous to the bringing of the bill in this cause, he had conveyed all his right, title, and interest it? said system of waterworks to the Bristol & Warren Waterworks, a corporation created by the general assembly of the state of Rhode Island, by deed duly recorded in the towns of Warren and Bristol, and in Bristol county, in the ...

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