Kelsey v. Board of Fire & Water Commissioners

Grant, J. (after stating the facts). The charter of the defendant provides for furnishing water to the owners or occupants of houses and other buildings. It does not contemplate that the defendant shall furnish water to each tenant who occupies a separate room in any house or building. It also provides various methods for enforcing collection of the rates. Counsel for complainant concede that the rates are a lien upon the building, and that the building can be sold for nonpayment of the rates by any tenant. The rules and regulations provide for dealing with the owners, and not with tenants. The application is required to be made by the oivner or some person duly authorized by him. The defendant has supplied only one service pipe from the street main to the building, and has provided for one shut-off in the street. This has been the universal custom. It is not, and cannot be, contended that defendant, under its charter, is not vested with the power and right to treat alone with the owner or occupant of the building as an entirety. If such owner or occupant rents rooms to tenants, he has not the right, under the charter, to compel the defendant to deal with his tenants, [220] and to collect the rates from them. Morrison & Scott, in their leases with their tenants, recognize that they are liable to the defendant, and therefore provide that their tenants must pay for the use of the water. The defendant has made no rule or regulation authorizing its officers or employés to deal with tenants, or to collect from them. The superintendent has done this as an accommodation to owners., and without authority, except as it may be implied from his course of business, known to its officers. Their practice in this regard, however, has not been uniform, and in some instances it has, at the request of property owners, assessed the rates to their tenants, but with the express agreement that the owner should pay if his tenants were delinquent. We do not think that this custom can be construed into a regulation perpetually binding upon the defendant. Until the difficulty arose over the nonpayment of rates by some of the tenants of the Nester Block, no provision had been made for shutting off the water in each room. The only method, therefore, for enforcing payment by shutting off the water, was by the use of the shut-off in the street. Morrison & Scott now seek to fasten this duty upon the defendant by furnishing, at their own expense, shut-offs, with locks and keys, in each room, tendering the keys to the defendant, and thus forcing it to relieve them from the collection of the rates. The charter authorizes the defendant to make all necessary rules and regulations for collecting its dues. We see nothing unreasonable in the method which it was pursuing. The authorities cited in behalf of complainant do not sustain his contention. In Red Star Line Steamship Co. v. City of Jersey City, 45 N. J. Law, 246, the sole question was the right of the company to charge consumers with the cost of expensive meters, and it was held that no such right was conferred by the charter. In U. S. v. American Waterworks Co., 37 Fed. 747, the waterworks ordinance provided that the company should furnish water to its citizens residing along the line of. its [221] mains, at certain rates, and at a tariff for dwelling houses according to the number of rooms, and other buildings of different kinds. The United States reservation known as “Fort Omaha” contained dwellings for officers, and other buildings. The United States claimed the right to- be furnished as a single consumer for the entire reservation, including all its buildings. It was held that the company-had the right to treat each building separately. In Lumbard v. Stearns, 4 Cush. 60, the act under which the water company was organized was attacked as unconstitutional because it contained no express provision requireing the corporation to supply all families and persons who should apply for water, on reasonable terms. It was contended that it might supply some houses and lots, and refuse to supply others. Chief Justice Shaw said, “This would be a plain abuse of their franchise.” In McCrary v. Beaudry, 67 Cal. 120, the water company assumed the right to shut off the water, without any reason, from the owner of the premises. In Price v. Irrigating Co., 56 Cal. 431, the defendant was organized “to furnish, sell, give, and supply water to any person or corporation, for irrigation, mechanical, or other purposes.” It refused to supply plaintiff with water, claiming the right to appropriate all the water to its own use, “as another sort of corporation.” In Young v. City of Boston, 104 Mass. 95, the charter required the city to furnish water to “the occupant of any tenement.” An ordinance was passed by the city, providing for the use of water in “model houses,” so called. These were similar to apartment houses or flats. A model house was one of those apartments used and occupied as a separate tenement. The city sought to deprive such tenant of the use of water. It was held that “this model lodging house was a ‘tenement,’ within the meaning of the ordinance.” In Wood v. City of Auburn, 87 Me. 287, the city had purchased the waterworks, had accepted payment for six months in advance from the complainant, who was the owner of the tenement building, and sought to shut off the watei [222] for the nonpayment of rates before the city purchased. It was held that the city, having accepted payment in advance, could not shut off the water for an old debt. In State v. Butte City Water Co., 18 Mont. 199, the owner of the building had given an order upon the defendant to the tenant to supply him with water. The tenant was •in possession of, and required and demanded the use of water for, the entire premises. The company refused to deal with the tenant, or to let him have water, notwithstanding the tender of payment for the entire building. It needs no argument to show that these authorities are not decisive upon the question before us. We find nothing in the action of the defendant which was unreasonable, or which will result in depriving complainant or any other tenant of the use of water. The object is apparent, — to relieve Morrison & Scott of the collection of the rates from their tenants, and to impose that duty upon the defendant. The decree is reversed, with the costs of both courts, and the bill dismissed. The other Justices concurred.