WATER BD. OF CITY OF MADISON v. Anderson

• Decision Date: 06 September 2002
• Citation: 850 So.2d 1230
• Parties: WATER AND WASTEWATER BOARD OF the CITY OF MADISON and Bernard L. Bressette v. G. Walton ANDERSON.
• Court: Alabama Supreme Court

850 So.2d 1230

WATER AND WASTEWATER BOARD OF the CITY OF MADISON and Bernard L. Bressette v. G. Walton ANDERSON.

1010896.

Supreme Court of Alabama.

September 6, 2002.

Rehearing Denied November 27, 2002.

William W. Sanderson, Jr., and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville; and H. Thomas Wells, Jr., of Maynard, Cooper & Gale, P.C., Birmingham, for appellants.

Charles H. Younger, Huntsville, for appellee.

HARWOOD, Justice.

The Water and Wastewater Board of the City of Madison and Bernard L. Bressette (hereinafter collectively referred to as "the Water Board") appeal from the trial court's writ of mandamus directing the Water Board to provide water service to property owned by G. Walton Anderson. We reverse and remand.

On April 24, 2001, Anderson sued the Water Board; his complaint contained, as an alternative, a petition for a writ of mandamus that sought an order from the trial court directing the Water Board to provide water service to his property.¹ Anderson's complaint stated, in pertinent part:

"2. Plaintiff is the owner of a tract or parcel of land located in Madison County, Alabama (hereinafter `the Property'). The Property contains approximately 8.85 acres more or less, and is bounded on the west by County Line Road, a public road being on the approximate boundary between the counties of Madison and Limestone, Alabama. The Property is bounded on the north, east, south, and west by the corporate boundaries of the City of Madison, Alabama, a municipal corporation organized and existing under the laws of the State of Alabama (`the City'). The Property is more specifically described by `Exhibit A,' attached hereto and made a part of this complaint. [Exhibit A is not attached to this opinion.]

"3. Defendant, the Water and Wastewater Board of the City of Madison, Inc., is a public corporation within the state of Alabama, organized pursuant to Sections 11-50-310 through XX-XX-XXX[,] Code of Alabama, 1975 (hereinafter `the Defendant'). The Defendant owns and operates a water system as a public utility, and is the sole distributor of potable water within the corporate boundaries of the City of Madison, and certain nearby territory. Defendant, Bernard L. Bressette is the duly appointed and acting General Manager of the Defendant, with authority and supervision over the issuance of connection permits for customers seeking service. (Hereinafter `Bressette'.)

"4. On or about the 27th day of July 1990, the Defendant entered into an agreement with the Madison County Commission, the governing body of Madison County, Alabama, to purchase from the County certain assets then owned and operated by the County as part of its water system serving portions of Madison County (`the 1990 Acquisition'). The Property was at that time a part of the then service area acquired by the Defendant through the 1990 Acquisition, although there was at the time no actual water distribution line directly adjacent to or upon Plaintiff's property.

"5. Shortly after the 1990 Acquisition, and before Plaintiff actually requested water service to the Property, the Defendant installed a ductile iron water distribution line in the right-of-way of County Line Road, directly adjacent to Plaintiff's Property (`the Adjacent Line').

"6. Subsequent to installation of the Adjacent Line, Plaintiff initiated oral discussions with Bressette, concerning potable water service to the Property. Mr. Bressette stated that water was available to the property upon payment of the Board's standard tap fee, but that sanitary sewage service would not be available. No actual application for service was made at that time due to unavailability of sanitary sewer.

"7. On the 8th day of January 1996, and in spite of the responsibility for service assumed by the Defendant under the terms of the 1990 Acquisition Agreement with respect to the service area, the Defendant adopted a policy denying service to any property not included within the corporate boundaries of the City of Madison (hereinafter `the 1996 Policy').

"8. Plaintiff has applied for and received permits from the Madison County Department of Health permitting installation and maintenance of a sanitary sewer septic system serving the Property.

"9. After having been denied service by Defendant, Plaintiff arranged, with the approval of the Madison County Commission, to receive service to the Property from the Limestone County Water Authority, which then served an area of Limestone County located across County Line Road from Plaintiff[']s Property. On April 23, 1998, employees of Defendant, acting under instructions from Bressette, and as an aid to enforcement of the 1996 Policy, wrongfully and unlawfully removed and/or appropriated a casing and PVC pipe which Plaintiff had installed under County Line Road at a cost of $8,300.00. The sole purpose of the confiscation was to compel Plaintiff to annex his property into the City of Madison and to compel Plaintiff to utilize as a customer, Defendant's water and sewer service.

"10. On or about July 1, 1999, Plaintiff, through his attorney, applied to the Defendant for water service to the Property. The application demonstrated compliance with all of the rules, regulations, and requirements of Defendant with respect to operation of its public water system, except that the Property remained outside the corporate boundaries of the City.

"11. On or about July 29, 1999, Plaintiff's counsel received a response to Plaintiff's request for service from Defendant's attorney, Honorable William W. Sanderson, Jr., citing the 1996 Policy. It was claimed by Defendant's attorney that the 1996 Policy was `... firmly grounded in important public policy considerations related to assuring that safe and healthful drinking water can be made available to the (Defendant's) customers.' It was also claimed that the 1996 Policy was a `legitimate exercise of the (Defendant's) authority and responsibility to protect the sources of water for its Customers.' In effect, Defendant, through its attorney, claims the right to deny service to a portion of its service area as a public utility, solely on the ground that the property to be served is not within the corporate boundaries of the City. The Defendant is a public corporation which enjoys only those powers conferred by its charter. The charter of Defendant confers no powers on the corporation, either express or implied, to regulate the use of any property within its service areas as a means of compelling its customers to also utilize its sanitary sewer service, or as a means to compel its customers to annex into the corporate boundaries of any municipality. The Defendant has no corporate charter power over any municipal annexation policy. The 1996 policy is ultra vires and void as being in excess of the charter power of the Defendant as a public utility.

"12. As a public utility, Defendant enjoys a franchise to operate a water distribution system serving customers within the corporate boundaries of the City of Madison, or partly within and partly without such boundaries. Defendant also has a public duty to serve all customers who apply for service and who comply with its reasonable rules, regulations, and conditions. Plaintiff's Property is located within the service area of Defendant. Plaintiff has complied with all of the reasonable rules, regulations, and conditions adopted by Defendant which are within its charter power. Nevertheless, Defendant has arbitrarily and without just cause, failed and refused to perform its obligation of service to Plaintiff and Plaintiff's Property.

"....

"14. Defendant, as a public corporation, is invested by the State of Alabama with the powers of eminent domain (Alabama Code Section 11-50-314(a)(11)). As a public corporation invested with the power of eminent domain, Defendant is commanded by the Constitution of Alabama of 1901, Section 235, to make just compensation before taking, injury, or destruction of property for public use. The application of Defendant's 1996 Policy has caused great injury and damage to Plaintiff's Property, and has resulted in Plaintiff being hindered in planning for the commercial use of his Property, for which it is well located and suited, and has prevented him from developing, using, or leasing said Property for any purpose for which it is suited, thereby totally depriving Plaintiff of the value of its use during the time that the 1996 Policy has been applied to prevent such use.

"15. As a result of Defendant's enforcement of the 1996 Policy, Plaintiff has been forced to spend great sums of money to find alternative ways to develop his Property and to serve the users thereof with potable water for operation of commercial businesses, including the operation of a proposed convenience store to be located on part of the property. Plaintiff has been forced to drill his own well at great expense, and although the well is proven to produce great amounts of water far in excess of the needs of Plaintiff's Property, the estimated cost of installing a treatment and distribution system to support commercial use of Plaintiff's Property is $66,900.00. Even though Plaintiff has received all of the necessary permits to install said system, Plaintiff prefers service from defendant's system, thereby avoiding future operation and maintenance expense for operation of his own system."

On April 26, 2001, the trial court set a show cause hearing on Anderson's petition for the writ of mandamus for July 6, 2001. On June 18, 2001, the Water Board filed a motion to dismiss Anderson's claims against it, arguing, in part, that "[t]here is neither an Alabama statutory requirement for a municipal water board to provide water to a designated service area nor is there any Alabama jurisprudence which would impose such a requirement." The trial court noted on the face of the motion that it would also hear the motion to dismiss on July 6, 2001, and that any written response had to be...