City of Greenwood v. Provine ( 1926 )

^* Corpus Juris-Cyc References: Mandamus 38CJ, p. 590, n. 37; p. 594, n. 55; p. 757, n. 42; Municipal Corporations 28Cyc, p. 951, n. 47 New; Duty of water company or municipality supplying water to extend the service to all applicants willing to comply with its regulations, see note in 47 L.R.A.(N.S.), 654; 27 R.C.L. pp. 1409-1411. This is a mandamus suit against the mayor and commissioners of the city of Greenwood to compel them to furnish water from the waterworks system of the municipality, for the use of appellee, B.B. Provine, at his residence on Grand Boulevard, and to extend the water mains of the city into Boulevard Addition, so that a water connection may be made from the waterworks system to his residence.

The petition for the writ of mandamus alleges that appellee, Provine, is a resident citizen of said city and resides on his lot, No. 1 in block 33 in what is known as the "Boulevard Addition" to said city; that the city owns its municipal water plant and is engaged in furnishing water to the inhabitants thereof by means of water mains lying along the streets, and that it is the duty of the city to furnish water to its resident citizens by means of water connections from its main pipes into the residences located along the streets upon which the city has its water mains located; that the city has a water main about seven hundred feet from appellee's residence, from which appellee desires a water connection to his residence, and for which he is ready, willing, and able to pay such charges as are required of him for the water; that the city has failed and refused to extend said water main to "Boulevard Addition," and along Grand Boulevard to his property, so that he could connect with it and have the use of the water at his residence; and mandamus is asked to compel the city to extend its waterworks system to "Boulevard Addition," and furnish water for the use of appellee at his residence.

"Boulevard Addition" was a subdivision lying outside of the corporate limits of Greenwood at the time the water mains of the city were laid, and this addition was not brought within the municipality until an extension of the municipal limits some years after the subdivision was platted and sold to the present resident owners thereof. The water main of the city is about seven hundred feet distant from the residence of appellee, and if the city is compelled to furnish water to appellee it will be necessary to extend its waterworks system from the old territory to this new territory of "Boulevard Addition," which is about two blocks away. The cost of the extension of the water main into the new territory would be considerable to the municipality, and the total number of citizens to be served in the new territory does not appear in the record in this case, nor does it appear whether or not such extension of the water main from the old territory into the new territory would be reasonable and justified by the conditions and circumstances of the situation. Although the appellant city offered testimony to show that such extension would be unreasonable, the court refused to permit testimony on this question.

The original owners of the "Boulevard Addition" sold lots therein to their present owners, and dedicated the street known as "Grand Boulevard" as shown by the maps and plats of the said subdivision; but the original owners reserved unto themselves "a continuous strip of land twenty-four feet in width along the center of Grand Boulevard and Park Avenue . . . for shade trees . . . water, sewer and gas mains and pipes, . . . and the exclusive right to construct, maintain and operate water, sewerage . . . systems in . . . the boulevard."

It appears that no application or petition was presented on the part of the appellee, Provine, or the other property holders on the said Grand Boulevard, to the city authorities requesting or demanding that the municipality extend its waterworks system from the present location into the new territory of the said subdivision; but the mandamus to compel the extension of the water system was asked for upon the theory that it was the duty of the city to extend its water mains to the premises of any citizen within the limits of the municipality.

The first question presented by the city upon which reversal and dismissal is asked on this appeal is that the writ of mandamus will not lie in the case, because, first, the appellee had an adequate remedy by application to the city authorities to extend the water mains into the new territory, and the right of appeal from an adverse decision by the city authorities; and, second, because the extension of the waterworks system of the municipality is a matter within the discretion of the city authorities, and unless the discretion is abused, or the refusal to do so is unreasonable, the action of the city authorities in refusing to extend the system is final.

The city also contends that the judgment of the lower court granting the mandamus to compel the extension of the waterworks system to "Grand Boulevard" was error, as it could not be done, because when the street was dedicated by the original owners the exclusive right was reserved in them to lay water mains and furnish water to the property owners on said street, and therefore the municipality of Greenwood has no right to lay water mains upon the said Grand Boulevard.

The appellant city also complains of the action of the lower court because of its refusal to hear testimony on the question of whether the proposed extension of the water mains from the old territory into the new territory was a reasonable demand, considering the cost of the extension and the revenue to be received from the use of the water, etc.

We shall dispose of the appeal by a decision of the question as to whether mandamus will lie in the case. Upon this particular point the record discloses that the appellee, Provine, seeks to compel the city authorities by mandamus, to extend its waterworks system into a new territory some two blocks away from the nearest water main laid in the old territory of the municipality before the Boulevard Addition became a part of the municipality by the extension of the corporate limits thereof. It is not a case where a resident citizen of the municipality is attempting to compel the city authorities to make a water connection from its water main already laid in the street to his residence, so as to furnish water for the use of his residence, but an extension of the water system is sought upon the ground set forth in the response brief of counsel for the appellee in the following language:

"We say that the distance he lives from the water main does not determine the question of whether or not he is entitled to the service. If he lives within the city limits, he is entitled to it, that is to say, if he lives within the municipal boundary, is decisive of the question. The distance of his residence from the water main or from the source of supply determines nothing. The size of the pipe through which the service is afforded determines nothing. The method, and the sole method provided by law of determining whether he is entitled to the service is whether or not he is a resident of a city which operates a waterworks system."

It is our opinion that this position is untenable. We think the question of the extension of the water system from one part of the city where the water mains are laid to another part of the municipality which comprises new territory taken into the corporate limits is within the discretion of the municipal authorities, and unless an abuse in the exercise of their judgment in that regard is manifest, then their decision of the question is final. Certainly it is not the law that a resident of a municipality, living in a remote corner thereof, may compel the city authorities to extend its water mains to his premises regardless of the cost and expense to the city, merely because the citizen resides within the boundaries of the municipality. The extension of the water system from one part of the city where already laid to another part depends upon the reasonableness of such extension, considering the demand for it, the number of water subscribers, and the revenue to be obtained from furnishing the water.

It is our judgment that the discretion to be exercised by the city authorities in the extension of its water system may be said to be limited to a refusal to extend where to do so would be unreasonable under the conditions and circumstances presented in the particular case; but, as we have said, unless the discretion is abused by the municipal authorities, their decision will be determinative. Lawrence v.Richards, 111 Me. 95, 88 A. 92, 47 L.R.A. (N.S.) 654, and note;Lukrawka v. Spring Valley Water Co., 169 Cal. 318,146 P. 640, Ann. Cas. 1916D, 277; 27 R.C.L. 1409, 1410, and 1411; sections 6007-6012, Hemingway's Code.

If this were a case where the appellee property holder on Boulevard avenue was seeking to compel the municipality, by mandamus, to connect from its water main already laid in said boulevard to the residence of the property holder to furnish him the use of water, we are inclined to the view that the remedy would lie, because the writ would then be for the purpose of compelling the city to perform a duty, a ministerial act or administrative duty, about which it would have no discretion, since the abutting property holder on the street would have the right to demand connection with the water main already laid therein. But this is not such a suit. The effort here is to compel the city authorities to extend their water system from one part of the city into another, which is discretionary and not ministerial. Therefore mandamus will not lie, because that remedy can be used only to compel an officer to perform a mandatory duty of his office, compel him to act; but the writ cannot be used to compel the officer to act in any particular way if the matter to be acted upon is discretionary, as we think it is in this case. 26 Cyc. 158; Robinson v. Board, 105 Miss. 90, 62 So. 3.

We shall decide no other question presented because it is unnecessary to do so in order to dispose of the appeal before us. Counsel seems to invite a decision of the question as to whether or not the municipality would have the legal right to lay its water mains in Boulevard Addition regardless of the exclusive right reserved in the original owners of that subdivision to furnish water to the property holders along the said boulevard. We refrain from deciding the point because the exclusive right reserved in the street by the original owners may be termed a property right, and since these owners are not in court we hardly deem it advisable to render a decision which would take their property, if they have any, for public use "without due process" or "without compensation therefor." It may be the law that the right reserved by these owners was nullified when the municipality took the subdivision in and accepted Grand Boulevard as a public street. Or it may be that, if the appellee property owner is entitled to the extension of the waterworks system so that he may be supplied with water, then it would be the duty of the municipality to extend its water mains for that purpose, even though it became necessary to condemn the right in this said boulevard to lay its water mains thereon. We decide none of these propositions at this time.

There is another question presented as to whether or not the appellee should have first applied to the city authorities for the extension of its water mains and a hearing on the merits as to the reasonableness of the request, and appealed from a decision, as provided in section 60, Hemingway's Code. We omit passing upon this point for the reason given.

The appellee, Provine, urges that the judgment of the lower court should be upheld because the question of extending the water mains in this case was not discretionary with the municipal authorities, but that it was ministerial in that it was not an extension, but was merely a connection sought between the water mains of the municipality and the residence of appellee on Grand Boulevard. The record does not support the contention, because the effort is to extend the municipal water mains into a new territory, which was and is being furnished water from other sources, and the main is seven hundred feet away from the residence of appellee, and, as we see it, it would not be a connection with a water main already laid in Grand Boulevard to furnish water to a residence on that street.

In view of the conclusions reached above, the judgment of the lower court will be reversed, and the case dismissed.

Reversed and the case dismissed.