Fulghum v. Town of Selma , 238 N.C. 100 ( 1953 )

76 S.E.2d 368 (1953) 238 N.C. 100

FULGHUM
v.
TOWN OF SELMA.
GRIFFIS et al.
v.
TOWN OF SELMA.

No. 238.

Supreme Court of North Carolina.

June 12, 1953.

Lyon & Lyon, Smithfield, for plaintiffs, appellants.

W. I. Godwin, Selma, and Wellons, Martin & Wellons, Smithfield, for defendant, appellee.

ERVIN, Justice.

There may be more than a modicum of truth in the assertion of the plaintiffs that the defendant enacted the ordinance and its amendment for the coercive purpose of inducing Fulghum to abandon his water service to the inhabitants of Selma Mill Village and transfer his pipe lines to the defendant at less than their value. Be this as it may, we must remember that hard cases are the quicksands of the law and confine ourselves to our appointed task of declaring the legal rights of the parties.

The crucial question raised by the appeal is this: Does the evidence of the plaintiffs suffice to show that Fulghum has the legal right to compel the Town of Selma to supply water to him at the rates charged consumers within its corporate limits for resale beyond its boundaries?

The plaintiffs insist initially that this question must be answered in the affirmative on the ground that the contract made by Fulghum with the Town of Selma in 1946 gives Fulghum this legal right.

This contention does not take certain controlling factors into account. The evidence discloses that Fulghum and the Town of Selma did not fix the time for the duration of the contract; that there was nothing in the inherent nature of the contract or the surrounding circumstances to indicate that Fulghum and the Town of Selma intended the contract to be perpetual or to continue for any ascertainable period of time; that the Town of Selma manifested its intention to put an end to the contract by adopting the ordinance and the amendment in controversy; and that the Town of Selma gave Fulghum due notice of its intention to terminate the contract. This being true, the evidence of the plaintiffs affirmatively reveals that the contract invoked by them has been lawfully terminated under this rule: Where the parties to a contract calling for a continuing performance fix no time for its duration and none can be implied from the nature of the contract or from the surrounding circumstances, the contract is terminable at will by either party on reasonable notice to the other. Joliet Bottling Co. v. Joliet Citizens' Brewing Co., 254 Ill. 215, 98 N.E. 263; Scott v. Dedham Water Co., 224 Mass. 398, 113 N.E. 282; Barish v. Chrysler Corp., 141 Neb. 157, 3 N.W.2d 91; Williston on Contracts (Rev.Ed.), section 38; 12 Am.Jur., Contracts, section 305; 17 C.J.S., Contracts, § 398; 67 C.J., Waters, section 747.

The precise question now before us was presented to the South Carolina Supreme Court upon virtually identical facts in Childs v. City of Columbia, 87 S.C. 566, 70 S.E. 296, 298, 34 L.R.A.,N.S., 542. In rejecting a contention similar to that now advanced by the plaintiffs, the South Carolina Supreme Court used these incisive words: "But * * * there is no allegation whatever that the plaintiff was bound to take, or that the city was bound to furnish, water for any specified time. Where the parties to a contract express no period for its duration, and no definite time can be implied from the nature of the contract or from the circumstances surrounding them, it would be unreasonable to impute to the parties an intention to make a contract binding themselves perpetually. In such a case the courts hold with practical unanimity that the only reasonable intention that can be imputed to the parties is that the contract may be terminated by either, on giving reasonable notice of his intention to the other."

The plaintiffs maintain secondarily that their evidence is sufficient to establish a legal right in Fulghum to the relief sought irrespective of the matter of contract right. They argue in this connection that when the Town of Selma established its waterworks and undertook to distribute water for compensation, it became the legal duty of the Town of Selma to supply Fulghum water for any purpose at the same rates as those charged consumers residing within its corporate limits.

This position is clearly insupportable if Fulghum is assigned the status of a nonresident because of his business activities in Selma Mill Village.

A municipality which operates its own waterworks is under no duty in the first instance to furnish water to persons outside its limits. It has the discretionary power, however, to engage in this undertaking. G.S. § 160-255. When a municipality exercises this discretionary power, it does not assume the obligations of a public service corporation toward nonresident consumers. G.S. § 62-30(3); 67 C.J., Waters, section 739. It retains the authority to specify the terms upon which nonresidents may obtain its water. Atlantic Construction Co. v. City of Raleigh, 230 N.C. 365, 53 S.E.2d 165. In exerting this authority, it "may fix a different rate from that charged within the corporate limits". G.S. § 160-256.

The rates fixed by the ordinance and the amendment for water supplied by the Town of Selma for consumption outside its corporate limits are not discriminatory in a legal sense. They apply alike to all nonresidents who purchase town water. The Town of Selma was empowered by law to make these rates different from those charged within its corporate limits. Since a nonresident must pay the uniform rates fixed by the Town of Selma for other nonresidents in order to obtain town water, it is immaterial that he deems such rates to be exorbitant or unreasonable. Atlantic Construction Co. v. City of Raleigh, supra; Childs v. City of Columbia, supra.

The legal position of Fulghum is not bettered a single whit on the present record if he is assigned the status of a resident of the Town of Selma because his home is within its boundaries.

When a municipality engages in supplying water to its inhabitants, it owes the duty of equal service in furnishing water only to consumers within its corporate limits. It is under no legal obligation to supply water to a resident for resale to others either within or without its municipal limits. Brand v. Board of Water Commissioners of Town of Billerica, 242 Mass. 223, 136 N.E. 389.

Fulghum does not seek to have the water in controversy furnished to him as a consumer residing within the boundaries of the Town of Selma. His sole purpose is to resell the water to persons living outside its corporate limits. This being true, he cannot complain of the refusal of the Town of Selma to furnish him the water in controversy at the same rate charged resident consumers of the same quantity of water.

We cannot take judicial notice of municipal ordinances. 31 C.J.S., Evidence, § 27. In consequence, we have ignored the ordinance allegedly adopted by the defendant on November 7, 1952.

Our decision on the compulsory nonsuit precludes a discussion of the other questions debated by the parties.

For the reasons given, the compulsory nonsuit is affirmed.