(concurring specially)-
Municipal corporations possess only those powers expressly granted, those necessarily implied in, or incident to, powers expressly granted, and those indispensable to declared objects and purposes of the corporation. Hoffman v. City of Minot, N. D., 77 N.W.2d 815, 58 A.L.R.2d 1338, and cases cited therein.
Section 130 of the North Dakota Constitution directs the legislative assembly to provide by the general law for the organization of municipal corporations. These municipal corporations when created pursuant to statute become agencies of the state and have only the powers expressly conferred upon them by the legislature, or such as may be necessarily implied from the powers expressly granted. Megarry Bros. v. City of St. Thomas, N. D., 66 N.W.2d 704, 709 (1954).
Cities in North Dakota have been granted the authority to establish and maintain a system of waterworks, N.D.C.C. § 40-05-01 (36); § 40-05-01(59); § 40-05-02(17); § 40-05-02(18); § 40-05-02(19). And under the provisions of N.D.C.C. ch. 40-22 cities may defray the expense of the construction of a water supply system, or a sewerage system, or both, by special assessments. And under N.D.C.C. § 40-33-01:
Any municipality may purchase, erect, construct, operate, maintain, enlarge, improve and extend * * *
5. Any waterworks, mains, and water distribution system and any equipment or appliances connected therewith;
The municipality is also authorized to sell surplus water outside of municipal limits under the provisions of N.D.C.C. § 40-33-13 and § 40-33-14, which read as follows:
Whenever the governing body shall shall deem it advisable, a municipality owning and operating its own electric lighting system or waterworks may enter into contracts with persons or corporations maintaining manufacturing plants, residences, or other buildings outside of the municipal limits, to furnish such plants or buildings with electricity or water if it can be furnished from the surplus remaining after supplying the needs of the municipality and its inhabitants.
N.D.C.C. § 40-33-13.
If the governing body decides to furnish electricity or water outside the municipal limits, it shall be done by a contract authorized by the governing body and executed on its part by the executive officer and the city auditor and by the customer or customers to be supplied. No such contract shall be authorized or entered into at any rate or price for electricity or water which shall discriminate against the inhabitants of the municipality, or which shall impose any direct tax burden upon the taxable property in the municipality, or in such amount as will interfere with the ability of the municipality to provide adequate electricity or water for its own use and the use of the inhabitants thereof.
N.D.C.C. § 40-33-14.
In this case, the City has not complied with the provisions of these statutes requiring the governing body to authorize the contract and that it be executed by its mayor and city auditor and by the customer or customers to be supplied. Here, the “agreement” has been signed by the customer only, it has not been signed by the officers of the City, although there is a record of the City having authorized this “agreement” in the minutes of its proceedings.
*531However, the City proceeded to furnish water to the property of the purchaser under the terms of the “agreement.”
In Grand Forks County v. City of Grand Forks, 123 N.W.2d 42, 45 (N.D.1963), we said:
The rule is well settled in most jurisdictions that a municipality or other political subdivision may become obligated on an implied contract to pay the reasonable value of benefits which it receives, accepts, and appropriates, where the municipality has the power to contract for such benefits. 38 Am.Jur., “Municipal Corporations,” Sec. 515, p. 193; 84 A. L.R., p. 937.
And in Township of Noble v. Aasen, 8 N.D. 77, 76 N.W. 990, Syllabus 3, (1898), we held that:
When township officers, acting colore officii, perform an act which is entirely within the scope and power of the township to perform, but perform the same in an improper and unlawful manner, such act is, nevertheless, the act of the township.
And we also said in Grand Forks County v. City of Grand Forks, supra, 123 N.W.2d at 46, that:
In other words, where a municipality has the power to enter into an obligation and is not prohibited from creating a liability in any but a specified way, it may be held liable on an implied agreement, upon the principle of unjust enrichment for services rendered and for goods furnished. Shulse v. City of Mayville, 223 Wis. 624, 271 N.W. 643.
And we also said in Grand Forks County v. City of Grand Forks, supra, 123 N.W.2d at 46:
Where a municipality has the power to contract but there is a defect in the manner of exercising that power, the municipality is liable for benefits received and retained. City of Shidler v. H. C. Speer & Sons Co., 62 F.2d 544 (10th Cir.); Western Chemical Co. v. Board of Commissioners of Lancaster County, 130 Neb. 550, 264 N.W. 699.
I am thus of the opinion that the City of Grand Forks and Mr. Flaat entered into an implied contract for the furnishing of water to his property.
However, I am of the opinion that the City may terminate the contract at any time upon reasonable notice as the contract does not fix a definite time for the termination of the contract nor does the contract state that it was to continue for any specified time.
Unless it might be said that the clause in the contract that “this agreement shall be construed by the courts as a covenant running with the land, * * * ” would be construed as a provision in the contract fixing the time the contract was to run. I do not believe that this clause can be so construed to fix a definite time. A covenant runs with the land only when such land is conveyed to or by the covenantor. “The covenant of a stranger to the title is incapable of transmission by a mere conveyance of the land.” 21 C.J.S. Covenants § 58, p. 925.
I can find no provision in the contract of a contractual nature upon which can be based a determination that the contract was for any specified term.
As was said in City of Milwaukee v. City of West Allis, 217 Wis. 614, 258 N.W. 851, 852, 259 N.W. 724:
It is a well-established principle of law that, where no definite term is fixed and the contract is indefinite in that regard, either party may terminate it upon a reasonable notice. 4 Page on Contracts, par. 2098.
It follows that the City has the right to terminate the contract for the furnishing of *532water at any time upon reasonable notice given to the owner of the Flaat tract.
I would reverse the judgment of the district court and remand the case for the purpose of determining a reasonable time for the termination of the contract to furnish water to become effective.
As to the threat to discontinue the sewer service to the property of the plaintiffs, the City is within its rights to discontinue such service. A city is granted power to construct and maintain a sewer system only within the corporate limits. N.D.C.C. § 40-05-01(23). There is no statutory authority for the city to furnish sewerage service outside of its corporate limits, or outside of the sewer district. The connection of the sewer system to the property of the plaintiffs is without authority of law. Reed v. City of Langdon, 78 N.D. 991, 54 N.W.2d 148.
The majority says that the right to grant sewerage service outside the city limits may be implied from the grant to furnish water outside of the city limits. But can it be said that out of the authority granted to the cities to construct and maintain a water system that there necessarily follows the implication that a sewer system may be constructed and operated under the same authority, especially outside of the city limits? I do not think that this is a correct interpretation of the implied powers which a city may exercise. The rule is that the city has only such implied powers as are reasonably necessary to enable it to exercise and perform those powers and duties which are expressly granted to and imposed upon it. Murphy v. Swanson, 50 N.D. 788, 198 N.W. 116, 119, 32 A.L.R. 82 (1924).
I would reverse the judgment enjoining the City from terminating the sewer service to the Flaat property.