Turner v. Revere Water Co.
| Decision Date | 21 May 1898 |
| Citation | 171 Mass. 329,50 N.E. 634 |
| Parties | TURNER v. REVERE WATER CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
C.R. Morse, for plaintiff.
B.N Johnson, for defendant.
On February 1, 1897, the plaintiff hired a dwelling house in Winthrop from Clarissa C. Doane, its owner. Two days later he applied to the defendant to have water turned on, and tendered the price charged from January 1, 1897, to January 1, 1898. The defendant refused to turn on the water until the amount due the defendant for water supplied to Mrs. Doane from January 1, 1896, to October 10, 1896, had been paid. In October, 1893, one Emmet J. Doane, the then owner of the house, made an application for water for the house, and paid the bills sent to him on July 1, 1894, and on July 1, 1895. On July 13, 1895, Emmet J. Doane conveyed the house to his mother, Clarissa C. Doane, who since that date has been the owner. The defendant received no notice of this conveyance until June 8, 1896. On July 1, 1896, the defendant sent a bill to Clarissa C. for water during the year 1896. The bill was not paid, and on July 17, 1896, the defendant sent notice to Clarissa that the water would be cut off unless the bill sent on July 1st should be paid immediately. On October 10 1896, the water was shut off. The defendant refuses to turn on the water until the plaintiff pays the bills incurred by his landlord, because it has the following rule or regulation: The superior court entered a decree restraining the defendant from refusing or neglecting to furnish the plaintiff a suitable supply of water so long as he continues to pay the regular water rates, and complies with all other reasonable and usual regulations of the defendant in the future, except those relating to the payment of the water rates remaining unpaid of previous owners or tenants. The case is before us on appeal, and the principal question presented is whether, if the rule applies to a case like this, it is reasonable. The defendant was incorporated, under St.1882, c. 142, "for the purpose of furnishing the inhabitants of Revere with water for domestic and other purposes." By section 4 it was given the power to "establish and fix from time to time rates for the use of such water, and collect the same." By St.1884, c. 259, it was authorized to contract with the town of Winthrop to supply that town with water "for the extinguishment of fires and for other purposes as authorized by said act." It was also authorized to "distribute water through said town, and establish and collect rates therefor in like manner as by said act it is authorized to do in the town of Revere." The amendment of its charter by St.1887, c. 387, is immaterial to the case.
It is contended that the rule is a reasonable one, because similar rules have been established by ordinances in various cities of this commonwealth, and in a statute of Georgia granting a charter to the city of Atlanta, and that it has been decided to be reasonable in Pennsylvania. It is also argued that it is easy for a person hiring or buying a house to ascertain whether the debt of some former owner has been paid. Of course, it cannot be disputed that if the legislature gives a lien upon the land to a water or gas company for unpaid dues, or uses words equivalent to giving a lien, it has the right to do so, and there is nothing more to be said. In City of Atlanta v. Burton, 90 Ga. 486, 16 S.E. 214, the charter provided that the board of water commissioners shall have the power to "require the payment in advance for the use or rent of water furnished by them in or upon any building, place or premises, and, in case prompt payments shall not be made, they may shut off the water from such building, place or premises, and shall not be compelled again to supply said building, place or premises with water until said arrears, with interest thereon, shall be fully paid." It was held that the commissioners might furnish water on credit; that the charter did not contemplate a personal credit, because water was not furnished to persons, but to buildings. "The charter did not contemplate nor intend that water should be furnished upon individual or personal credit, but that the supply should be made a charge upon the property to which the water was conveyed." In Girard Life Ins. Co. v. City of Philadelphia, 88 Pa.St. 393, the words of the ordinance were that, after the water was turned off, it "shall not again be supplied or furnished to the said premises except upon payment of all arrears of water rent, and the sum of $2 for expenses incurred." The opinion of the court states that the validity of the ordinance was conceded. The only question was whether, as the defendant had not sooner cut off the water on rates not being paid, the plaintiff was obliged to pay three years' rates due from a former owner, instead of the rates for one year, of which it had made a tender. The case of Com. v. City of Philadelphia, 132 Pa.St. 288, 19 A. 136 (a gas case), simply considered the question as settled by the former case, and the opinion does not discuss it. In Appeal of Brumm (Pa.Sup.) 12 A. 855 (a water case), the charter expressly provided that the real estate to which the water was furnished should be bound by the water rates. The argument derived from foreign legislation, and ordinances of cities in other states, seems to us to be of little consequence in determining the question before us, as to the effect of the regulation in this case. It may be noted, however, that in New York it is expressly provided that a gas company cannot refuse to turn on gas because a former occupant of the premises has not paid for the gas consumed by him. St.N.Y.1859, c. 311, §§ 6, 9; 2 Rev.St. N.Y.1896, pp. 1356, 1357. In England it has been held, under St. 10 & 11 Vict. c. 17, that, if a tenant does not pay water rates, the water company may sever the connection between the house and the main pipes, and that, if a new tenant occupies the house, he has the right to have the water turned on, on reconnecting the pipes, but until he does so the water company is not liable to a penalty under the act for not supplying him with water. The remarks of Bramwell, L.J., on the point of not compelling the new tenant to pay an old debt, will be cited later. Water-Works Co. v. Wilkinson, 4 C.P.Div. 410. Under 50 & 51 Vict. c. 21, § 4, arrears of water rates, where the rent does not exceed £20, may be recovered in a personal action against a purchaser of land, but the water cannot be cut off. Water-Works Co. v. Kellerman [1892] 2 Q.B. 72.
So far as legislation is concerned in Massachusetts, the case of a gas company is covered. Pub.St. c. 61, § 16, gives the company the right to "stop the gas from entering the premises" of a person neglecting to pay the amount due and to enter the premises between certain hours, and remove the meter, etc. Nothing is said about making subsequent users liable for old debts. St.1894, c. 299, makes it unlawful for a gas company to refuse to supply gas for any building or premises "for the reason that a gas bill remains unpaid by any previous occupant of said building or premises: provided the person or persons applying for gas shall not be in arrears to such corporation for gas previously furnished to or for said building or premises, or to or for any other building or premises." So far as gas is concerned, the question is settled. As to water, there was no general legislation until after this action was brought. St.1898, c. 168, makes the same provision as to water that St.1894, c. 299, made as to gas. The statute is not retroactive, and the question before us must be decided on general principles. There is much in our special legislation to show that we should not hold that one man is obliged to pay the debt of another, or that a water rate is a charge upon the land. The charter of the defendant is one of the simpler forms. The one which is generally found, and which applies to most of the cities and towns of this commonwealth, after giving the right to regulate the price or rents for the use of water contains this provision: "The occupant of any tenement shall be liable for the payment of the price or rent for the use of the water in such tenement; and the owner thereof shall be also liable, if, on being notified of such use, he does not object thereto." St.1846, c. 167, § 14 (Boston); St.1863, c. 163, § 13 (New Bedford); St.1864, c. 268, § 14 (Salem); St.1865, c. 153, § 9 (Cambridge); St.1867, c. 60, § 7 (Medford); Id. c. 343, § 13 (Roxbury); St.1869, c. 462, § 12 (Lynn); St.1871, c. 307, § 8 (Woburn); Id. c. 133, § 17 (Fall River); St.1872, c. 343, § 14 (Brookline); Id. c. 188, § 9 (Concord and Lincoln); Id. c. 62,§ 9 (Holyoke); Id. c. 79, § 11 (Lawrence); Id. c. 344, § 14 (Newton); Id. c. 345, § 10 (Springfield); Id. c. 336, § 14 (West Roxbury); Id. c. 337, § 11 (Waltham); St.1873, c. 274, § 7 (Lexington); Id. c. 76, § 9 (Natick); Id. c. 322, § 9 (Westfield); St.1874, c. 191, § 9 (Danvers); Id. c. 256, § 9 (Marlboro); Id. c. 125, § 10 (Newton); St.1875, c. 199, § 14 (Watertown); St.1881, c. 206, § 8 (Framingham); St.1884, c. 256, § 12 (Cambridge); St.1887, c. 416, § 11 (Malden). The following charters have the "occupant and owner" clause, but add that the water rates are "to be collected in an action of contract in the name of the city"...
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