Dail v. Adams Building Corp.

WELCH, J. This action was brought by E. D. Dail against Adams Building Corporation and the city of Tulsa for damages against the first named defendant, and for mandatory injunction or damages against the last-named defendant. It is alleged in plaintiffs petition that in 1928 plaintiff’s predecessor in title constructed a private sewer line from the Arkansas river to a point near the city limits of Tulsa along the county highway by virtue of easements from the board of county commissioners. That in 1939, by written contract, plaintiff permitted the city to connect to said sewer line. That in 1946 the city permitted the Adams Building Corporation, without permission of plaintiff, to connect onto said sewer line to serve certain lots in Adams Estates, an addition adjoining the city limits. That under the terms of plaintiff’s contract with the city this connection was unauthorized, and that the capacity of plaintiff’s sewer line is limited and the use of the sewer line by Adams Estates would so tax plaintiff’s line that it would be impracticable to grant to certain potential customers the right and permission to connect onto said sewer line. That thereby plaintiff would be denied revenue he is entitled to receive as owner of said sewer line from the sale of sewer connections, or in the alternative would be required to install a larger sewer line at great expense to plaintiff. Plaintiff alleges that he has been damaged in the sum of $100 for each lot in Adams Estates, or an aggregate of $5,400, and asks judgment against defendant Adams Building Corporation in that amount, and for a [452] mandatory injunction against the city of Tulsa to compel it to cause said sewer to be disconnected, and on failure so to do that plaintiff have judgment in the sum of $5,400 against the city of Tulsa. Defendants each interposed a demurrer to plaintiff’s petition, which demurrers were sustained. Plaintiff elected to stand upon the sufficiency of his pleadings and judgment was entered for the defendants. Plaintiff appeals. It is shown by the pleadings that the connection made by the Adams Corporation was onto an extension of the city’s sewer line serving the Woodland Heights addition and the block in Leoki Place addition; that the sewer lines from the Adams Estates would empty directly into the city’s line and indirectly into plaintiff’s line. Plaintiff pleads a written contract whereby he permitted the city to connect its certain sewer line to plain-, tiff’s line at a certain point named in the agreement. The question presented is whether the city violated the terms of its agreement with plaintiff in permitting the Adams connection to the city’s line. The contract pleaded by plaintiff was in form a proposal and its acceptance as follows: “Tulsa, Oklahoma “June 28, 1939 “The Honorable Mayor and “Board of Commissioners “City of Tulsa, Tulsa, Okla. “Gentlemen: For One and no/100 ($1.00) Dollars, and other good and valuable considerations, the receipt of which is hereby acknowledged we, the undersigned, as owners, hereby grant to the City of Tulsa the privilege of connecting to our private sewer at the manhole in 36th Place, 135 feet east of Peoria Avenue in the City of Tulsa, this connection to serve as a perpetual outlet and easement without further compensation for the proposed sanitary sewer to serve Woodland Heights Addition and Block One (IR Leoki Place Addition to the City of Tulsa, according to the duly recorded plat thereof. “Permission for this connection is. granted to the City of Tulsa with the understanding that the City of Tulsa is. to maintain and upkeep all of said sewer lines referred to above, together with our lines between the points of this connection and the outlet at the-Arkansas River. “E. D. Dail “by Mary Blockman.” * * * * * “Accepted: “City of Tulsa, “Dr. T. A. Penny, Mayor (Seal) “Milton W. Davis, Auditor.” The contract cannot be said to be a. conveyance of plaintiff’s line to the city, nor does it grant plaintiff any proprietary interest in the city’s line. The city is given no interest in plaintiff’s, line except the right to use and the duty to maintain the line as an outlet, for its particular line through the connection authorized by the agreement. The plaintiff is given no interest in or-right of control over the city’s line unless the agreement authorizing the connection limited the use by the city of' the city’s line. The clause “this connection to serve as a perpetual outlet . . . for the proposed sanitary sewer to serve Woodland Heights Addition and Block One (1), Leoki Place Addition to the City of Tulsa,” contains no words of limitation upon the use of the outlet except, that the connection is limited to a particular city sewer line. The words. “Woodland Heights Addition, etc.,” serve to describe or identify the particular line to be connected and do not limit the extent of the use of that city line by the city and to the exclusion of' other property that might become entitled to sewer service from the city. Plaintiff agreed that the city might: make a particular connection to plain453 tiff’s line to serve as an outlet for a particular city line without restriction upon the city as to the use of its line. The authorization by the city to the Adams Corporation to connect to the city’s line, although with a resulting consequence of an increased use of plaintiff’s line, was in the first instance an increase in the use of the city’s line, and such increase in the use of the city’s line with the limits of the city’s connection and the city’s outlet into plaintiff’s line, did not violate the agreement. The judgment is affirmed. DAVISON, V.C.J., and CORN, GIBSON, and ARNOLD, JJ., concur. HURST, C.J., and RILEY and LUT-TRELL, JJ., dissent.