State ex rel. Milsted v. Butte City Water Co. , 1896 Mont. LEXIS 266 ( 1896 )

Hunt, J.

The appellant contends that there was an issue of fact tendered by the answer of respondent upon the question whether relator was or was not a tenant in possession of the premises involved. But we think that the denial of respondent, that ‘‘as to whether relator is a tenant in possession of the said premises, it had no knowledge or information upon which to found a belief, and therefore denies the same, ’5 was not good under Compiled Statutes, 1887 (Code Civ. Proc. 89.) The court required a specific denial of .the material allegations of the complaint controverted by the defendant. ‘ If the complaint be verified, the denial of each allegation controverted must be specific, and be made positively, or according to the information and belief of the defendant. ’ ’

While there are cases and authors holding a denial such as respondent's good under codes quite similar to the Montana Code of 1887, in California this exact question Avas long since decided by Justice Field for the supreme court of that state, in Curtis v. Richards, 9 Cal. 34, where it Avas said of a denial like appellant’s: “There are but two forms in which a defendant can controvert the allegations of a verified complaint, so as to raise an issue — first, positively, when the facts are Avithin his own personal knowledge; and, second, upon information and belief, Avhen the facts are not within his own personal knowledge. (Prac. Act, § 46.) These forms cannot be indiscriminately used. If the facts alleged in the complaint are presumptively within the knowledge of the defendant, he must answer positively, and a denial upon information and belief will be treated as an evasion. Thus, for example, in reference to instruments of writing alleged in a complaint to have been executed by the defendant, a positive answer will alone satisfy the requirements of the statute. If the defendant has forgotten the execution of the instruments, or doubts the correctness of their description or copy in the complaint, he should, before answering, take the requisite steps to obtain an inspection of the originals. (Prac. Act, § 446.) If the facts alleged in the complaint are not personally within the knowledge of the defendant, he must answer according to his information and belief. In no case can an allegation of the complaint be controverted by a denial of sufficient knowledge or information upon the subject to form a belief. By the forty-sixth section of the Practice Act, as originally passed in 1851, it was provided that an allegation of the complaint must be controverted by a denial ‘of any knowledge thereof sufficient to form a belief. ’ In practice this mode of denial was found to furnish a convenient pretext for evading the statute. In some instances, defendants became critical in their judgments, as to the extent of knowledge sufficient to form a belief, and would, without hesitation, deny, in that form, facts upon the existence of which they did not hesitate to act in other matters. In 1854, the forty-sixth section was amended to the present language, and the wisdom of the amendment is well illustrated in the present case.” See, also, San Francisco Gas Co. v. City of San Francisco, 9 Cal. 467, where, on rehearing, the court adhere to the rule established in Curtis v. Richards.

The Montana Practice Act, as it appears in the Laws of 1887, having been principally taken from California, and having been modified in its requirements of what a denial must contain, and how it must be made, after the decision of the supreme court of the United States in Maclay v. Sands, 94 U. S. 586, reversing Sands v. Maclay, 2 Mont. 35, the construction of the California Code should have great weight in the construction of similar provisions of our practice act.

Bliss on Code Pleadings, § 326, says: “The pleader is not permitted to evade the statute. He must deny directly and positively, or must deny, in the language of the statute, ‘according to his information and belief. ’ To say that ‘he has not sufficient knowledge to form a belief, ’ and therefore denies, will not do; nor will it be permitted to ‘deny for want of information to enable them to admit. ’ ’ ’ (Pomeroy on Code Rem. § 610; Estee’s Pl. & Prac. § 3224.)

The supreme court of South Dakota, in Cummins v. Lawrence Co., 1 S. D. 158, 46 N. W. 182, held that a denial, such as appellant has made in the case at bar, is not a denial of any fact averred, “but is a mere denial of any knowledge or information as to the alleged facts sufficient to form a belief in respect to their existence or nonexistence, ’ ’ and, of itself, is no defense. By statute of that state, however, such a denial is expressly authorized, and, by virtue of the statutory permission, that form of denial is held good. Maxwell Code PL p. 386, holds such denials good, but he does not refer to the California cases, and relies upon the single case of State v. Commissioners of Hancock Co., 11 Ohio St., 183, to sustain his text. But it is evident, from an inspection of the Ohio case, that the statute in force was different from that of California and Montana.

It is observed that the new Codes of 1895 extend the method and form of denials, giving far more latitude apparently, than under the former practice. Code Civ. Proc. 1895, § 690. We shall follow the California cases, and hold that the statutory form of denial was the only one to be sustained. The denial, therefore, being insufficient, and no issues of fact being presented, the question for determination is : Can the appellant water company refuse to supply relator with water for general purposes at the premises involved ?

The appellant is a water company, engaged in supplying the inhabitants of the city of Butte with water, under its franchise. The city gave the corporation the right to lay its mains in its streets and alleys. The company, on the other hand, is required to supply the inhabitants of the city of Butte with water for general use, at prices specified in the franchise granted. The relator is an inhabitant of Butte, occupying premises wholly without water for general use, and there are no other means by which water for his house may be secured, except from the appellant corporation. Ought the appellant to be allowed to refuse his tender for water in advance, and to refuse him water upon the ground that, ‘ ‘by virtue of its rules and regulations adopted, it can deal only with the owners of the property requiring water to be turned on, or the agents of said owners V We say not.

The performance of the duty the company undertook when it accepted the franchise granted was to supply the inhabitants of the city with water. £ ‘A waterworks company is a quasi public corporation. It must supply water to all who apply therefor and offer to pay rents. ’ ’ (Cook on Stock, Stockh. & Corp. Law, § 932.) The account of which the grant was given was a public purpose. (Lumbard v. Stearns, 4 Cush. 61.) Therefore, “the grant is subject to an implied condition that the company shall assume an obligation to fulfill the public purpose on account of which the grant was made. ’ ’ (Morawitz on Priv. Corp. § 1129.)

The view that supplying a city and its inhabitants with water for general purposes is a business of a public nature, and meets a general necessity, is sustained by the great weight of authority reviewed in a learned opinion of Lord, C. J., in Haugen v. Water Co. (Or.) 28 Pac. 244. It was there said: “The defendant, by incorporating under the statute, for the purpose of supplying water to the city and its inhabitants, undertook a business which it could not have carried on without the grant of eminent domain over the streets in which to - lay its pipes. It was by incorporating for this purpose, and in accepting the grant, it became invested with a franchise belonging to the public, and not enjoyed of common right, for the accomplishment of public objects, and the promotion of public convenience and comfort. Its business was not of a private, but of public, nature, and designed, under the conditions of the grant, as well for the benefit of the public as the company. ’ ’

Certainly, the company may make reasonable rules and regulations. Doubtless it may require payments in advance for a reasonable length of time. It may, within reasonable limitations, cut off the supply of those who refuse to pay water rents due. It may make regulations authorizing an examination of meters in houses at reasonable times, or adopt other reasonable rules for the regulation of its affairs. But it has no power to abridge the obligations, assumed by it in accepting its franchise, to supply an inhabitant of Butte with water, if he pays them for it in advance, and is a tenant in the possession and occupancy of a house in need of water for general purposes.

Whether the owner has made a contract with the corporation to hold himself personally liable or not, or whether he has signed any paper agreeing to subject his property to a lien for water rents, we will not discuss in this case. The water company in no case, however, can go beyond the powers granted to it, and such powers must be exercised in a reasonable manner; and, if it has adopted a by-law that is in conflict with its franchise, which may be termed its constitution, or is unreasonable or oppressive, the subordinate rule or by-law will be set aside. (Thompson on Corp. § 1010 et seq.)

This relator was entitled to water, and to a receipt for his payment, issued directly to him, and to have the amount of his payment credited to him alone, and the by-law pleaded by the company is, as to him, clearly unreasonable; and it is immaterial to his rights whether the owner had any agreement with the company or not, or whether, as tenant, he knew of the existence of any £uch agreement. The duty of the company, under its franchise, and undertaken to be fulfilled, must be performed. The order appealed from is affirmed.

Affirmed.

PembertoN, C. J-, concurs. De Witt, J., not sitting.