Walsh v. Bristol & Warren Waterworks

• Citation: 39 R.I. 292,97 A. 798
• Decision Date: 13 June 1916
• Docket Number: No. 326.,326.
• Court: Rhode Island Supreme Court
• Parties: WALSH v. BRISTOL & WARREN WATERWORKS.

97 A. 798

39 R.I. 292

WALSH

v. BRISTOL & WARREN WATERWORKS.

No. 326.

Supreme Court of Rhode Island.

June 13, 1916.

Appeal from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Judge.

Bill for injunction by James J. Walsh against the Bristol & Warren Waterworks. Decree for defendant dismissing the bill, and plaintiff appeals. Affirmed, and cause remanded to the superior court, with direction to vacate the preliminary injunction continued in force pending the appeal.

Cooney & Cahill, of Providence, for complainant Mumford, Huddy & Emerson, of Providence (Charles C. Mumford, of Providence, of counsel), for respondent.

PARKHURST, J. This is a bill in equity filed in the superior court sitting for the counties of Providence and Bristol, wherein the complainant seeks to enjoin the respondent from shutting off the water supply at his house in pursuance of certain rules established by the respondent. The superior court entered its decree dismissing the bill, and the complainant thereafter duly perfected an appeal from that decree to this court. The cause is now before us upon this appeal.

It appears from the pleadings and testimony that the respondent is a corporation created by the General Assembly of the state of Rhode Island for the purpose of supplying water for commercial and domestic purposes to the residents of Bristol, Warren, and Barrington, and for the purposes of its business, rightfully uses the public highways, roads, and streets within those towns.

For many years the plaintiff has been a customer of the respondent and has had upon premises owned by him certain faucets, water taps and receptacles for water, all of which have been supplied and furnished with water through the pipes and mains of the respondent corporation.

In May, 1907, the town of Bristol and the respondent corporation entered into a contract by which the respondent acquired an exclusive right and privilege to use the public streets, lanes, and squares of that town for the laying and maintaining of its pipes' for a period of 50 years from May 15, 1907. In this contract is the following clause:

"The company will not, during said term, charge for water for domestic or manufacturing purposes in excess of the rates now established, and will, as soon as business conditions and the requirements of the company will reasonably warrant, make reasonable and equitable reductions of the rates or charges for water for said purposes."

The bill avers that the plaintiff has always paid all sums of money properly required by the defendant for the use of water on his premises at 38 Bourne street in Bristol, and the respondent has furnished him with water, and the plaintiff is ready and willing to pay such sum as is properly required and to comply with all reasonable regulations; this allegation is denied by the answer.

On the 18th of January, 1913, the defendant delivered to the plaintiff a notice that unless a bill for water rates amounting to $23 for the premises at 38 Bourne street was paid within a week thereafter, the water would be shut off, which, by the plaintiff's statement, would cause irreparable damage. The allegation of the delivery of the notice to the plaintiff by the respondent is admitted by the answer.

The answer further avers that since the year 1899 the plaintiff has owned the premises consisting of a house in which there are three tenements leased to different tenants; that in each of said tenements is a water faucet with a bowl connected with the sewerage system, and that in the tenement on the first floor and also in the tenement on the second floor there is a bathtub, to which there are no faucets attached to be used by furnishing water directly, but each of said tubs is connected with the sewerage system; that these tubs were installed when the house was built, and at that time water pipes provided with faucets connected with the defendant's water system were installed in connection with the tubs, but the plaintiff thereafter decided not to have water in the bathrooms and so notified the respondent, and was informed that in that case he should remove the pipes and water fixtures provided in connection with the bathtubs, which he did.

The answer further avers that since the removal of the faucets the plaintiff and his tenants have used the bathtubs without the knowledge and consent of the defendant by drawing water, into a pail by means of a faucet connected with a set bowl and the pipes connected with the defendant's system; that the plaintiff in his application for the use of water agreed to be governed by the defendant's rules; that when the contract was made between the defendant and the town of Bristol there were certain flat rates adopted as follows, which rates have remained continuously and are now in force:

"Dwelling houses occupied by one family, for first faucet, $7.00.

"For each additional faucet to be used by same family, $3,00.

"For the first water-closet, self-closing, $5.00.

"For each additional water-closet, $4.00.

"For the first bathtub, $5.00.

"For each additional bathtub, $4.00.

"When the house is occupied by more than one family, one faucet only being used by all, for each family, $6.00.

"When a water-closet or bathtub is used by more than one family, for each family, $5.00."

The answer further avers that for a number of years prior to November 1, 1912, certain of the residents of Bristol supplied by the defendant with water have had bathtubs and other fixtures not directly connected by pipes with the defendant's supply and have used water in practically the same amount as though they were connected. This was accomplished by various devices, by having a bathtub set in the same room with the set bowl, and filling the bathtub with a rubber tube; by cutting a hole in the partition between the bathroom and the kitchen and by leading a tube or tin spout through the partition; by screwing a pipe into the flush tank of the closet or siphoning water from such flush tank.

The answer further avers that for the early portion of the time this secret use of the water supplied by the defendant was a matter of small financial importance but recently it has increased until, to the knowledge of the defendant, there are more than 50 cases. In consequence of this, prior to November 1, 1912, the defendant adopted a rule which is numbered 16 and which is as follows:

"16. No deduction will be made for fixtures claimed to be nonused; every fountain, water-closet, set basin, sink or other fixture used or not will be deemed and held used, and will be charged for so long as such fountain, water-closet, set basin, sink or other fixtures shall remain connected with the water pipe or waste pipe."

It further appears that the defendant gave the plaintiff notice of the adoption of this rule before November 1, 1912, and on or about November 1, 1912, sent the plaintiff a memorandum of the amount due at the rate of $46 per annum or $23 for the then ensuing six months. This included a charge for water to be furnished to faucets and water-closets at the established rates, and also a charge for water at the established rates to be furnished for use in the two bathtubs. The plaintiff offered to pay for everything but the amount charged for bathtubs, and upon the defendant refusing to accept that sum and sending him a notice of its intention to shut off the water as aforesaid, this bill was brought to enjoin such action.

One of the rules is as follows:

"17. The regular annual rate for the use of water shall be payable in advance semiannually, on the first day of May and November in each year. In all cases of nonpayment of the water rate in thirty days after the rent is due, the supply may be shut off and shall not be let on again except on payment of the rent due and the sum of two ($2.00) dollars."

The averments of the answer, above set forth, are fully proved. The only issue between the parties therefore is as to the rightfulness of the defendant's charge for the use of the two bathtubs which were connected with the sewerage system but connected with which there was no faucet supplying water directly from the defendant's system.

In cross-examination the plaintiff admitted that, since the faucets were disconnected, the bathtubs have been used.

"Q. 69. Mr. Walsh, how have these bathtubs been used since you disconnected the faucets? A. I can't tell you how they have been used for six or seven years. When I lived there my wife used to take water in a pail and put it in the tub. Q. 70. Where did she take the Water from? A. From the kitchen sink. Q. 71. A water faucet connected with the Bristol & Warran Water Company's supply? A. Yes, sir. Q. 72. Filled the pail and then poured the water into the tub? A. Yes; carried it to the kitchen. Q. 73. Then pulled the plug and let the water run down the waste pipe into the sewer. A. Yes, sir. Q. 74. So far as you know that has been continued? A. So far as I know. One lady upstairs has been there ten years, and the one down stairs has been there between five and six years. What is going on there now I can't say. I never see them using the tub. Q. 75. Ever hear them say? A. No, sir. Q. 77. The tubs, however, are still connected with the sewer? A. Yes, sir. Q. 78. And they have plugs in the waste pipe, so that the running out of the water can be controlled? A. Yes, sir. Q. 79. And they can be used if the water is put in them? A. Yes. sir. Q. 80. Just the same as they could be when you were there? A. Yes; as they always have been."

These admissions by the plaintiff are very significant, particularly when it appears that he did not call any of his tenants to show that these bathtubs were not used as claimed by the defendant. We think it is amply proved by these admissions that the plaintiff's bathtubs were being used by his tenants just as the answer claimed that they were.

Upon this state of facts the presiding justice of the superior court entered his decree...