Tubbs v. City of Custer City

BURCH, P. J.

(dissenting). I am unable to agree with the majority of the court that the complaint states a cause of action for any purpose. The complaint is attacked by demurrer and this court ought not to indulge a too liberal construction. We should *463hold to a rule consistent with good pleading and construe doubtful, ambiguous, and uncertain laguage against the pleader. The complaint is long with many redundant, immaterial, and evidentiary facts pleaded. The majority opinion does not set it out in full, but attempts to set out the substance. In a nutshell it amounts to this: Plaintiff owns a tract of land adjoining the city of 'Custer, on which he “permitted” the city, to build a portion of its waterworks system; such portion being the source of the water supply containing the wells and pumps. The “permission” so often reiterated' and emphasized in the complaint was plaintiff’s performance of a contract claimed to have been entered into' between plaintiff and the city. The permission was granted with the understanding that the city would not take water in such quantity as to interfere with his supply of water which he was then getting in a well, but, if it did take too much water and interfere with plaintiff’s water supply, the permission was not revoked, but plaintiff might tap the water main and retake so much of the water as he wanted. That the city took so much that the supply of water in plaintiff’s well was not sufficient for his needs and so he abandoned and filled up his well and tapped the city main and drew water from there without charge or molestation until the city finally demanded paj^ and threatened to cut off his water if he did not pay, whereupon he paid $17.50 under protest. That the action of defendant in requiring payment for the. water was in direct violation “of the executed parol understanding and agreement” between plaintiff and defendant. That “resting secure in his executed parol understancDing and agreement” he installed pipes and plumbing to connect with the defendant’s main at an expense of $500. That “plaintiff is entitled to all and the whole of said water emanating from said springs and wells upon his said premises, should he desire or require the same, but that plaintiff * * * is ready and willing now that defendant use and continue to use all of the surplus and excess water above plaintiff’s needs and desires. * * »

The prayer of the complaint is in five paragraphs and shows what plaintiff seeks: First, he asks that defendant be permanently enjoined “from ever, in any manner, obstructing the full free flow, of water” into his line tapping the city main, and from in any manner charging plaintiff therefor; second, that defendant be en*464joined “from ever, in any manner, depriving plaintiff herein of any or all of the water * * third, for judgment for his expenditures in making the connection with defendant’s main, including all pipes and plumbing belonging to him and for the water rental paid under protest; fourth, for costs; fifth, for such other and further relief as to the court may seem just, equitable, and proper in the premises.

If the prayer of plaintiff’s complaint were granted, the city would be compelled to erect at its expense an elaborate waterworks system (and incidentally to furnish machinery, pumps, and men to operate it) for the primary use and benefit of Tubbs, a private person, with no right in the city, except to use such water as plaintiff might permit. I do not know how common it may be for private persons to make such contracts with cities as is contended for here, but I am quite sure the courts are not often appealed to to enforce such contracts, and until the decision reached in the majority opinion I would have been sure no appeal could be successful.

The majority opinion characterizes the possession of the city as permissive only and says that plaintiff does not claim there was a contract. He certainly alleges there was a contract. Above I have quoted and underscored the exact words of the complaint as to a contract. True, he has repeatedly said that the occupancy was permissive, as if there were some virtue and efficacy in a constant repetition of that conclusion, but his allegations of fact upon which he bases his prayer refute his conclusion. With all due respect to other members of the court, I insist that the complaint does allege a contract and its breach, and that contract and the breach thereof forms the basis for all the specific relief sought. Such contract is so obviously ultra vires and beyond the power of the city to make that no citation of authorities is necessary.

Under the facts pleaded plaintiff is entitled to no relief unless it be damages for taking or injuring his property. Such cause has not been properly pleaded. The sufficiency of the complaint has been challenged by demurrer and there is no need for a liberal construction in furtherance of justice, as the complaint may be amended, setting out such cause of action in unmistakable terms. The majority opinion does not limit the cause of action to damages, but appears' to sustain the complaint as an action in equity.

*465I have not overlooked a possible suggestion that the complaint .states a cause of action to recover water rent paid under protest. In my opinion the city has no power to furnish water free of charge to one user where a charge is made to others. I concede the city might pay for a right acquired and that the payment might be in water in lieu of cash. But some amount of compensation would have to be fixed. Under the pretext of acquiring a right to land for a waterworks system city officials could not give to one the use of water in unlimited quantities for unlimited time.

By injunction plaintiff seeks specific performance of a contract in which the city must pay for plaintiff’s private lines of pipe leading to his dwelling house and ranch buildings, including plumbing, hydrants, and faucets, and connect them with its water main and then permit plaintiff to take all the water if he desire's to- do- so. In consideration for which the city may have what water the plaintiff permits it to have. If that is not a private waterworks system built at public expense, I am unable to define it.

If when the remittitur of this court is sent to the circuit court, that court grants the relief prayed for and through an administration friendly or indifferent to such result, no appeal is taken, or if an appeal be taken and this court adheres to its decision here made as the law of the case, then despite the constitutional guaranty that taxes shall be levied for public purposes only, the citizens of Custer will be taxed to support a private water system and every washerwoman must pay proportionately more for her tub of water to maintain that system. If the majority of the court do not intend to say that the complaint states a cause of action to enforce the contract pleaded, I think the opinion should say what cause of action is sufficiently pleaded, thereby eliminating the uncertainties and ambiguities of the complaint on the trial and on another appeal if it comes to this court again.