Caston v. Hutson

^* Headnotes 1. Injunctions, 32 C.J., section 737 (Anno); See 2 R.C.L., p. 194, et seq.; 2 R.C.L. Supp., p. 432 et seq., 4 R.C.L. Supp., p. 90, 5 R.C.L. Supp., p. 79; 2. Waters, 40 Cyc., p. 791; On right of water Company to discriminate between consumers as to rate, see note in 61 L.R.A. 113; 27 L.R.A. (N.S.) 674, L.R.A. 1915D, 1086; 27 R.C.L. 1449. The appellants filed a bill in the chancery court of Humphreys county, averring in substance that they were the owners of certain property in the town of Isola, Miss., upon which is located a hotel building, which is operated by them, and in which they live; that adjoining this hotel property is a lot owned by K.S. Hutson, defendant in the court below, and one of the appellees here, upon which is located an artesian well, engine, and pump, a water tower or tank, and other equipment necessary for furnishing water to the inhabitants of said town of Isola; that the said K.S. Hutson owns and operates this waterworks system for hire, and furnishes water to the inhabitants of the town, and that she has so operated this waterworks system for many years, using the streets of the town for laying water mains to which the various residences and buildings in the town are connected; that for about a year prior to the filing of the suit the appellees had permitted this water tank to be and remain in a leaky condition, and as a result thereof water from the tank or tower was blown across and onto the property of appellants to such an extent that it greatly damaged the land, building, and business of appellants; that appellees ignored the repeated protests of appellant, and refused to repair the tank, and finally, in a fit of anger cut off the pipes running from the water main to the hotel, although all demands for water rent were fully paid, and that in removing said pipes the employees of appellees had dug and left open certain ditches and other excavations on the property of appellants. There are many other averments of the bill which we deem it unnecessary to here set out. Upon the bill a preliminary mandatory injunction was granted requiring the appellees to at once proceed to repair the water tank so as to cease casting water over and upon the property of appellants; requiring them to repair the pipes which formerly extended onto and into the appellants' lot in such a manner that they might obtain water; requiring them to fill up the ditch or trench dug by the servants and employees of appellees in front of and upon the property of appellants; requiring them to reconnect the pipes, mains, and well with the residence and hotel of appellants, so that they could obtain and use water from this well; and enjoining the appellees from further interfering with the use by appellants of the water from said pipes and well, and from trespassing upon the property of appellants.

The appellees answered the bill, and filed a motion to dissolve the injunction, and at the hearing of this motion it was agreed that upon the proof to be offered there should be a final determination of all issues presented. At the conclusion of the testimony, the chancellor entered a decree, first dissolving the injunction granted, and allowing two hundred and fifty dollars as attorney's fees for the dissolution of the injunction; and second, granting an injunction enjoining and restraining the appellees from refusing to furnish water to the appellants, upon their paying such reasonable rates as are charged other consumers for like services, and upon their complying with such reasonable rules and regulations as are charged other consumers, and perpetually enjoining appellees from refusing to furnish water to appellants in their said residence and hotel property, so long as said rates are paid and the said rules and regulations are complied with by appellants.

The facts material to a decision of this case are practically uncontroverted. From the testimony it appears that about twelve or fourteen years ago the appellees and a few other citizens of the town of Isola entered into a scheme for the boring of a deep well for the purpose of securing pure drinking water. At the inception of the plan it was entered into as a co-operative enterprise for the use of themselves, all contributing to the expense and sharing the benefits. The appellees contributed more toward this enterprise than the others and the well was bored on the land of the appellee K.S. Hutson, and water mains or pipes were laid along and under the streets of the town, which was then an unincorporated village. The subscribers to the fund for boring the well connected with these mains, the water being forced through the pipes by the force of the natural flow of water from the well. After this water system was installed it was found that there was water largely in excess of the needs of the original subscribers, and permission was granted to the citizens generally of the municipality to connect with the mains and well, each consumer paying the expense of making his connections with the water mains. In the course of time the number of consumers became so large that the natural flow of the water was insufficient to furnish the force necessary to place the water in the homes of the various users thereof, and it became necessary to have a small engine and pump and a water tower or tank in order to continue to furnish sufficient water. All of the original subscribers to the enterprise except the appellees withdrew or declined to furnish additional funds, and, by the tacit consent of all concerned, the appellees took over the enterprise, installed the necessary machinery and equipment, extended the mains, and otherwise added to the efficiency of the operations of the plant. Thereafter the appellees assumed full control of the entire system, established a monthly charge for the use of the water, employed the necessary labor for the supervision and operation of the plant, and continued to furnish water to all the residents of the town who desired to use the water, and who would at their own expense connect with the water mains. Under this arrangement practically all the residents of the town connected with these mains and used the water from this well, paying to the appellees the monthly rental fixed by them for the use of the water. The appellee F.M. Hutson, who managed and operated this water system, testified that every resident of town and community was permitted to connect his premises to these mains without restrictions other than the payment of the expense of making the connections, and that the monthly charge or rental fixed and collected by him was intended to cover the actual cost of labor, material, and repairs incurred in the operation of the system; that the monthly rental collected, and which had not been increased or changed for several years, was insufficient to meet the actual expense of operation, and that the system had been operated at a loss for several years.

At the time the well was originally bored the town of Isola was unincorporated. Thereafter it was incorporated, but forfeited its charter, and was later reincorporated as Lake Lawson. This charter was likewise forfeited, and several years thereafter was again incorporated as the town of Isola. The appellees were never granted a franchise for the use of the streets of the town in the operation of this water system, and the municipal authorities never exercised any sort of control or supervision over the system.

There was some slight conflict in the testimony as to whether the excavation in front of appellants' premises was filled before or after the service of the writ of injunction, but there was no testimony whatever that the leaky or defective condition of the water tank caused any water to fall across or onto the premises of appellants.

The decree of the court below, in the first paragraph thereof, orders the dissolution of the preliminary injunction, and awards damages, while in the second paragraph the defendants are perpetually enjoined from refusing to furnish water to the appellants so long as they pay the rates charged to other consumers, and comply with all reasonable rules and regulations in the use of the water as are applicable to other consumers. As we construe this decree, it is, in effect, simply a modification of temporary injunction originally granted, and if the decree is correct in retaining the injunction to the extent of requiring the appellees to continue to furnish water to the appellants, the decree should be reversed in so far as it awarded attorney's fees as damages. The controlling question for decision then is, whether or not, under the facts and circumstances herein detailed, this waterworks system was so impressed with the character of a public utility that, within the territory served by it, the public generally has the right to demand that the service be furnished, without discrimination, to those complying with all reasonable rules and regulations in the use of water and paying the reasonable charges therefor?

The testimony is that this well, mains, and other equipment were put down for the accommodation and use of anybody in the town; that whoever bought a lot in the town of Isola was entitled to a hydrant and use of the water, on the condition that he would pay the expense of a connection and his proportion of the expense of operation of the plant; that this waterworks system supplied water to the public school, the stores, and practically all of the residences in the town, and that this public service and use of water had continued for many years. The appellees used the streets of the municipality for the purpose of laying and extending the water mains. They fixed the rates to be charged the consumers for the use of the water, without any attempted supervision on the part of the municipal authorities, and collected these monthly charges from all the consumers, including appellants, for many years. The consumers had nothing to do with the method or manner of operation, or the costs thereof, or the amount of the charges for the use of the water, and the fact, if it be a fact, that the waterworks was operated at a loss does not change the character of the operation from that of one for hire.

The appellees have no franchise from or contract with the municipality, and the right to discontinue the service entirely is not here involved, but we are clearly of the opinion that under the facts the appellees have dedicated this water and plant to the public service and use to the extent that, within the territory served by it, the public generally, and particularly that portion of it that has been served, and has accepted the service, may demand and require that, so long as the service is continued, it shall be furnished to the individuals without any sort of discrimination. The decree of the court below, however, perpetually restrains the appellees from refusing to furnish water to the hotel and residents of appellants, so long as they pay such reasonable rates and comply with such reasonable rules and regulations as are applicable to other consumers, and we are of the opinion that the language of this restraining order should be further limited so as to require such service only so long as the service to the public is continued.

Upon this record, there is no merit in the cross-appeal, and the decree of the court below will be affirmed on cross-appeal, and on direct appeal will be reversed, in so far as it allowed attorney's fees as damages, and modified, in accordance with the directions herein contained.

Reversed in part, and affirmed in part on direct appeal, andaffirmed on cross-appeal.