Vermillion Artesian Well, Electric Light, Mining, Industrial & Improvement Co. v. City of Vermillion

• Decision Date: 12 January 1895
• Citation: 61 N.W. 802,6 S.D. 466
• Parties: VERMILLION ARTESIAN WELL, ELECTRIC LIGHT, MINING, INDUSTRIAL & IMPROVEMENT CO. v. CITY OF VERMILLION.
• Court: South Dakota Supreme Court

61 N.W. 802

6 S.D. 466

VERMILLION ARTESIAN WELL, ELECTRIC LIGHT, MINING, INDUSTRIAL & IMPROVEMENT CO. v. CITY OF VERMILLION.

Supreme Court of South Dakota

January 12, 1895

Syllabus by the Court.

1. An objection interposed to a question after a responsive answer has been given, under circumstances from which it is fair to presume that counsel waited for the purpose of ascertaining whether the response by the witness would be favorable, comes too late to make an adverse ruling thereon available error.

2. The exception to the rule that witnesses not shown to be experts are precluded from giving their opinions in evidence allows a witness to testify concerning a matter which requires no special knowledge nor peculiar skill; and one who observes a stream of water that is being thrown upon a building from an open street may state the approximate height of such stream although such evidence is not of the greatest probative force, and may be entirely overcome by the cross-examination or by the introduction of accurate information in rebuttal.

3. As it did not sufficiently appear that a certain valve was open when a test was made, nor that an expert knew the pressure under which the pumps were working at a given time, it was not reversible error to sustain an objection to the following question: "State, in your opinion, how much water would be discharged from this opening, under a pressure such as was on the pumps at the time this test was made."

4. It is the province of the jury to weigh the testimony, and a verdict sustained by competent evidence will not be disturbed on appeal.

Appeal from circuit court, Clay county; E. G. Smith, Judge.

Action by Vermillion Artesian Well, Electric Light, Mining Industrial & Improvement Company against the city of Vermillion, S. D., to recover for water rent. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

E. M Kelsey and Gamble & Dillon, for appellant. French & Orvis for respondent.

FULLER J.

This is an action to recover for water rents alleged to be due plaintiff from defendant, upon a contract in the form of a city ordinance, entered into by plaintiff's assignor, S V. Saleno, and the defendant city, the provisions of which, so far as material, are as follows: "Said S. V. Saleno shall erect and maintain two duplex pumps of sufficient capacity to throw four one-inch streams through one-inch ring nozzles, 80 feet high, at one time, from any four hydrants located by the city council, provided that not more than two such streams are located on one four-inch line; also lay not less than 5 and 4-5 miles of improved Wyckoff pipe, and such pipe shall be of sufficient size and capacity to furnish and supply all the water necessary for the purposes contemplated. *** There shall be erected fifty-six fire hydrants, the same to be located by the authority of said city council. Said city of Vermillion, South Dakota, shall pay S. V. Saleno, or assigns, as they may order, an annual rental in a sum not to exceed $40.62 1/2 for each of said fifty-six hydrants, said rental to be paid one-half on the first day of January and one-half on the first day of June each and every year. *** The said S. V. Saleno and assigns shall furnish all applicants water on the lines of street mains, to supply the same in sufficient quantity to meet the demands of each and all such applicants. provided by doing so will not necessitate an increase of size and capacity of system. The said city of Vermillion shall have the right to use, free of charge, at all times, without notice, water from the hydrants for extinguishing of fire, and the use of one stream at a time through a fire nozzle, for flushing gutters and sewers whenever necessary for sanitary purposes, upon giving notice to the person in charge of the waterworks. Notice in writing of the completion of such waterworks ready for use shall be given by said party or assigns to the city auditor, and said city council shall within ten days thereafter cause such works to be tested; and, if the same comply with the conditions and requirements of this ordinance, such works shall be immediately accepted by said city council, and such works shall be taken and deemed accepted unless notice in writing to the contrary shall, for sufficient reason, be given by said city council. *** Said S. V. Saleno, or his assigns, shall enter into a bond in the sum of two thousand dollars, to the city of Vermillion, conditioned that they will faithfully carry out the terms of the contract on their part; and, in default of a full performance of the conditions of the contract on the part of S. V. Saleno and his assigns, the city of Vermillion shall declare...