Warren v. Bradley

• Decision Date: 15 March 1955
• Citation: 39 Tenn.App. 451,284 S.W.2d 698
• Parties: J. R. WARREN, Appellee, v. A. B. BRADLEY, Appellant.
• Court: Tennessee Court of Appeals

Page 698

284 S.W.2d 698

39 Tenn.App. 451

J. R. WARREN, Appellee, v. A. B. BRADLEY, Appellant.

Court of Appeals of Tennessee, Eastern Section.

March 15, 1955 Certiorari Denied by Supreme Court June 10, 1955.

Clay Walker, Morristown, for appellant.

W. J. Barron, Morristown, for appellee.

HALE, Judge.

J. R. Warren, claiming under the authority hereinafter set forth, filed suit to enjoin A. B. Bradley from making a connection with a sewer constructed by the Town of Morristown. Decree for complainant, and defendant appeals.

The question: May a municipal corporation, for a monetary consideration, turn over a portion of its sewer system to an individual and allow him to fix and collect, without limitation, tap charges from property owners in that area who desire to connect with such sewer?

On November 16, 1951, the Board of Mayor and Aldermen of the Town of Morristown adopted the following resolution:

'Whereas, the Department of Streets and Sewers recently has completed the construction of a sanitary sewer with the necessary laterals on Hillcrest Drive in the Warren Addition and within the corporate limits of the Town of Morristown, the costs of said sewer and the laterals being $1215.00;

'And Whereas, James R. Warren, who is developing the Warren Subdivision, has agreed to pay the entire cost of said sewer including the cost of constructing the laterals, amounting to $1215.00, provided that he be given certain rights therein:

'Now Therefore, be it resolved by the Mayor and Aldermen of the Town of Morristown that the Mayor and Recorder be and they hereby are directed and authorized to execute, acknowledge, and deliver, on behalf of the Mayor and Aldermen of the Town of Morristown a written contract providing that in consideration of the payment of $1215.00 by him to said Town:

'(1) For a period of twenty years from November 16, 1951, the said James R. Warren, his heirs, devisees, and assigns, shall have the exclusive right and privilege to connect with said sanitary sewer recently constructed on Hillcrest Drive;

'(2) During said period of twenty years the Town shall exact no fees or charges of any kind from the said James R. Warren, his heirs, devisees, or assigns for the privilege of connecting with said sewer;

'(3) The said James R. Warren is granted the right to assign the privilege of connecting with said sewer and may charge any person to whom he may assign said privilege a consideration therefor;

'(4) Throughout said period of twenty years the Town will maintain a connection between the lower terminus of said sewer and the main sanitary sewer system of the Town, and will, during said period maintain and repair said sewer at its own expense.'

On May 22, 1952, the parties, i. e., the Town and Warren, entered into the following contract:

'That in consideration of the payment by James R. Warren to the Town of $1115.00, the receipt of which is hereby acknowledged, said amount being the entire cost of the sanitary sewer and laterals recently constructed on Hillcrest Drive in the Warren Addition of the Town of Morristown, the same being located in the First Civil District of Hamblen County, Tennessee, and within the corporate limits of the Town, the Town does hereby grant and convey unto said James R. Warren, his heirs, devisees, and assigns, the following rights and privileges with respect to said sewer and laterals:

'(1) Until the sum of $1115.00 has been recovered the said James R. Warren, his heirs, devisees, and assigns, shall have the exclusive right and privilege to connect with said sanitary sewer recently constructed on Hillcrest Drive;

'(2) During said period the Town shall exact no fees or charges of any kind from the said James R. Warren, his heirs, devisees, or assigns for the privilege of connecting with said sewer;

'(3) The said James R. Warren is granted the right to assign the privilege of connecting with said sewer and may charge any person to whom he may assign said privilege a consideration therefor;

'James R. Warren will report to the 'Town' semi-annually as to the amounts he has collected and received.

'(4) Throughout said period of twenty years the Town will maintain a connection between the lower terminus of said sewer and the main sanitary sewer system of the Town, and will, during said period maintain and repair said sewer at its own expense.'

It will be noted that the consideration named in the contract, $1,115, is $100 less than the sum named in the quoted resolution. This was due to the fact that after the resolution was adopted and prior to the execution of the contract a permit had been issued by the Town to one Otto Williams to connect with such sewer. Warren was to charge $100 for connection fee; therefore the contract price to him was abated by $100 to compensate for the Williams permit. The record does not show what is charged by the Town for sewer connections, but in the oral argument it was stated by Mr. Barron, representing appellee, that the charge was $7.50. The record does not show what Mr. Williams paid for his connection.

It will also be noted that the contract in (1) deviates from the resolution in that it undertakes to impose a limitation upon the amount, $1,115, to be 'recovered' by Warren, and under (3) requires him to report to the Town 'semi-annually as to the amounts he has collected and received', which apparently refers to connection charges.

After this contract was obtained Warren proceeded to charge a tap or connection fee of $100 from each property owner who desired connection. He also created a second subdivision on Hillcrest Drive to the north of and adjoining the subdivision mentioned in the quoted resolution and contract. Lots were sold in this second subdivision, but it is not clear that they are being served by this sewer, although such seems to be the inference. When complainant was asked if he collected from each purchaser of these lots in the second subdivision he replied, 'What I collected was in the lot. I collected the total price for the lot.' He was also vague about the amounts he had collected from persons in the first subdivision who connected with this sewer, saying he would have to 'check up to give you that figure' and that he would be afraid to make an estimate. There is nothing in the record to show that he ever made any statement to the Town as to the amounts received. His deposition was taken nearly two years after he made the contract of May, 1952.

The sewer line in question was built in the summer or fall of 1951. The material entering into it cost $1,215, paid by the Town. The labor cost, also furnished by the Town, is not shown. It is probable that it equalled or exceeded the cost of material if the general trend of construction costs apply.

The defendant Bradley owned a residence on lot No. 13 in this subdivision and had lived in it for some two or more years prior to the construction of this sewer. His premises were served by a septic tank. This became full and was causing offensive odors, thus making it desirable to obtain sewer connections. He personally and through his plumber made applications to the Town for a permit, but was refused because of the contract the Town had made with Warren. Warren demanded $100 for the connection fee, as he says, whereas Bradley claims $125 was demanded. At any rate, Bradley began to dig a ditch from his premises towards this sewer with the purpose of making a connection. Warren then filed the bill in question.

We might add that the Town had in effect an ordinance declaring the use of surface closets and cesspools on premises abutting streets which contained sanitary sewers was injurious to the public health, and requiring such property owners, after notice, to install closets with sewer connection. Failure to comply was punishable by fine from $5 to $25. It is not shown that the use of this ordinance was contemplated against Bradley.

'The establishment and maintenance of a sewer system by a city is ordinarily regarded as an exercise of its police power. McQuillian, Sec. 1545.' Patterson v. City of Chattanooga, 192 Tenn. 267, at page 275, 241 S.W.2d 291, at page 294. Also see Verran v. Town of Greeneville, 4 Tenn.App. 422.

In 'granting permission for the use of its sewers in the first instance, and for the continuing use thereof, the municipality must at all times retain control, and any attempt by way of contract to deprive it of that control is void.' 64 C.J.S., Municipal Corporations, Sec. 1805, p. 266.

This text is supported by the case of Ericksen v. City of Sioux Falls, 70 S.D. 40, 14 N.W.2d 89, at page 95, in which it is said:

'The supervision and regulation of the sewers is a police function of the city. Therefore, in granting permission for the use of the sewers in the first instance and for the continuing use thereof, the city must at all times retain control, and any attempt by way of contract to deprive the city of that control is void. The police power of the city cannot be bargained away by contract, but must at all times be available for use to meet such public needs as may arise. McQuillin, Municipal Corporations, 2d Ed.Rev., Secs. 393, 1564.'

The case of Weaver v. Canon Sewer Co., 18 Colo.App. 242, 70 P. 953, 954, involved the validity of an ordinance granting to an individual the exclusive rights for 20 years to construct a sewer system in the city. It was held that 'public powers or trusts devolved by law or charter upon the council or governing body, to be exercised by it when and in such manner as it shall judge best, cannot be delegated to others.' The ordinance was held to be void.

In McQuillin, ibid, 3rd Edition, Sec. ___, it is said:

'A municipality cannot surrender its power to control and regulate sewers and drains within its limits.'

In Corpus Juris Secundum it is said:

'A municipal corporation cannot make a binding contract for the discharge of a purely public duty; and, unless the state has expressly and unequivocally...