Stillwater Water Co. v. City of Stillwater

GilfillaN, C. J. The ease presents the sole question of the meaning and effect of a section (4) in an ordinance of .the city, granting to plaintiff the right to lay its main pipes in and through the streets of the city. Section 3 grants the right. Section 4 is as follows: “See. 4. The Stillwater Water Company shall lay no less than seven (7) miles of main pipes, so located as to best secure the fire protection of the city, due regard being had for the proper circulation, and for the supply of water for domestic purposes. If at any time it shall appear that by extending the water pipes or mains an additional revenue to said company can be secured, either from public hydrants, or by the written agreement of responsible consumers, which shall not be less than at the rate of one hundred and fifty dollars ($150) per year for every three hundred (300) feet for such extension, the city council may by resolution require said company to make such extension of pipes, which shall be done without unreasonable delay: provided, however, that if said company shall be required to lay their mains in any ungraded street, whenever said street is graded the city shall pay the cost of relaying such pipes with proper reference to the established grade.” A part of the seven miles mentioned in this section was laid along streets, the grades of which had been previously established by the city, but the streets had not been’graded. After the pipes were laid the city re-established the grades on a lower plane than at first established, and graded the streets to the grade as thus re-established. [502] This made it necessary for the plaintiff to lower and relay its pipes, and the action is to recover the expense thereof. The plaintiff claims that the proviso applies as well to any part of the seven miles that might be laid in ungraded streets as to extensions that might be ordered by the council after the ordinance was passed. The city claims that it applies only to such extensions. Grammatically construed, it does not apply to a present requirement, to one made by the ordinance itself, but applies to future requirements, — “if said company shall be required to lay their mains,” etc. Coming immediately after a part of the section authorizing the council to make such future requirements, requirements further and beyond what are made in and by the ordinance itself, there is no reason to give the proviso any other than its proper grammatical meaning, or for holding that it was the intention to attach a condition to any requirement except such as the power to make which is thus reserved to the council. The proviso does not apply to the seven miles of mains absolutely required to be laid. The plaintiff claims also that without the proviso the city would be liable in damages for changing the grades, and cutting the streets down to the grades as changed, if that made it necessary for plaintiff to make a corresponding change in the level of its pipes. This could be only on the proposition that the city has in some way fettered or limited its power over the streets, and over the matter of establishing grades and grading streets. Conceding, but not deciding, that under its charter the city could bind or limit the power over those matters intrusted to it, the intention to do so would have to be clearly expressed, or appear by necessary implication from some act done by it. The plaintiff argues that here is a contract between it and the city, and appeals to the principle that one contracting party must not interfere with the other in his performance of the contract. There is a contract, it is true, but not such a one as the plaintiff appears to assume. The plaintiff did not agree to lay the pipes for the city. In laying them, it was doing its own work, not that of the city. The contract was merely in the nature of the grant of a franchise or right to plaintiff to lay its pipes in the street; the city imposing on the grant such conditions as it deemed the public [503] interests require. "When one acquires a right to use a street or highway for purposes of his own, the right is subject and must be enjoyed in subordination to the power of the public authorities to keep it in condition for public use, unless the express terms of the grant by which he acquires the right, or the nature of the right acquired by him, necessarily excludes or limits such power. So when under this ordinance the plaintiff acquired the right to lay pipes in the streets, that right was subordinate to the power of the city to establish grades and grade the streets. There is nothing in the terms of the ordinance excluding that power, and nothing, except in the proviso to Section 4, limiting it; and although the exercise of the power may at times cause plaintiff inconvenience and expense, that is nothing more than it took the risk of in accepting the grant. There is nothing in the right granted inconsistent with or which excludes the power of the city over the matters referred to; and except where the city has assumed a liability by reason of exercising that power, none exists. (Opinion published. 52 N. W. Rep. 893.) Judgment affirmed.