§ 460. The power to construct includes what. The power to construct must be found in some express provision of the law and comprises generally within the grant of the greater power the right to do all those acts which are reasonably necessary and proper to exercise efficiently the power granted.1126 It would include the implied right to lay and construct water mains, hydrants, standpipes1127 and all the necessary adjuncts to an efficient system for the supply of water.1128 erect hydrants, fire plugs, etc.," carries with it the implied power to erect hydrants of a water company for municipal purposes. "It appears that the city water company transferred to the Austin Water, Light and Power Company its contract with the city of Austin for the rental of hydrants and that the city acquiesced in this transfer without question, so far as the record shows, and that during all this period, as found by the verdict of the jury, the Austin Water, Light and Power Company complied substantially with its contract with the city to furnish the hydrants with water. It makes a clear case of consent on the part of the city to the transfer of the contract and a consent which we think is binding. It is urged, however, that this contract is not one which could be enforced against the city, unless it could be also enforced against the Water, Light and Power company, and that the company is not bound by, and could not be held to a compliance with the contract. We do not think this is true. The new company purchased from the old company its property, rights, contracts, privileges and franchises and went forward at once to carry out the contract with the city. We see no reason whatever for the claim that the obligations of this transferee company and the city were not correlative. If as we believe, under the facts in the case, the city can be required to pay for the water we think the Austin Water, Light and Power Company could be required to furnish it." See, also, as holding the same. City of Lexington v. Lafayette County Bank, 165 Mo. 671, 65 S. W. 943; Warren v. City of Chicago (Ill.) 9 N. E. 883. 1128 Keen v. City of Waycross, 101 Ga. 588. Under authority granted to establish and maintain a municipal waterworks system, it is here held, a city cannot lawfully engage in a general plumbing business, buying and selling to private persons those articles usually used in securing a water supply. Linck v. City of Litchfield, 31 Ill. App. 118; Inhabitants of Stoughton v. Paul, 173 Mass. 148, 53 N. E. 272. "This is a bill brought to restrain the water commissioners of Stoughton from using land purchased by (a) Use of streets. The grant of an express or the existence of the implied power to construct and maintain a water supply in·cluding its details carries with it the implied right and power to use or permit to be used the streets of a public corporation for laying out and constructing such a system.1129 Ordinarily, the use of streets for such a purpose does not impose any additional burden or servitude and the adjoining owners, therefore, are not entitled to compensation for such use, it being one of the common and anticipated purposes to which they may be put.1130 The their predecessors in 1897 for a water supply and to set aside the sale and the contract made for the construction of waterworks. The only question is whether the commissioners had authority to buy the land. * The objection urged is that it was expected to get the waters of Knowles' Brook through wells on this land by interception or percolation. * * We must assume that the purchase was for the purpose contemplated by the act unless the contrary clearly appears. Whether it was expected or hoped to get the water without a further act of taking or not, and without paying for anything but the land, no doubt it was expected to do whatever was necessary in order to get the water. It does not matter that an express taking of the water was postponed." Citing California Southern R. Co. v. Kimball, 61 Cal. 90. Burnett v. City of Boston, 173 Mass. 173, 53 N. E. 379. 1129 City of St. Louis v. Western Union Tel. Co., 149 U. S. 465; City of Quincy v. Bull, 106 Ill. 337; State v. City of St. Louis, 145 Mo. 551, 42 L. R. A. 113; Sharp v. City of South Omaha, 53 Neb. 700; State v. Cincinnati Gaslight & Coke Co., 18 Ohio St. 262. 1130 City of Peoria v. Walker, 47 Ill. App. 182; City of Morrison v. Hinkson, 87 Ill. 587. Where a municipal corporation erects a water tank in the center of a street and in connection operates a steam engine, an abutting property owner can recover damages as this is not a use for which the grant could be appropriately used under a dedication as a street. Barrows v. City of Sycamore, 150 Ill. 588, 25 L. R. A. 535, reversing 49 Ill. App. 590. Although a city cannot erect a stand pipe in connection with its waterworks system in one of the public streets without entitling an abutting property owner to compensation, to recover he must show some special damage suffered in excess of that sustained by the public generally. Carpenter v. Capital Elec. Co., 178 Ill. 29, 43 L. R. A. 645; Lostutter v. City of Aurora, 126 Ind. 436, 12 L. R. A. 259; Wood v. National Waterworks Co., 33 Kan. 590; Witcher V. Holland Waterworks Co., 66 Hun, 619, affirmed 142 N. Y. 626; Village of Pelham Manor v. New Rochelle Water Co., 143 N. Y. 532; Smith v. City of Goldsboro, 121 N. C. 350; Provost v. New Chester Water Co., 162 Pa. 275. The rule applies even where a water pipe is laid underneath a sidewalk in such a manner as to pre H public corporation may also in connection with the construction and maintenance of its system, wherever it is found necessary, condemn property for this use, a subject which will be considered in a succeeding section.1131 Where permission has been granted to a private corporation or person to use streets or highways for this purpose, the right must be exercised at all times subject to the control of the proper municipal authorities.1132 The rule that prevents an abutting property owner from recovering compensation for the use of streets in laying water pipes and mains does not apply to country highways and roads. The use of these for such a purpose or for the construction of sewers or the laying of gas pipes is commonly considered an additional burden for which the adjoining owner can recover compensation.1133 vent an abutter from building stairs to his basement. Lewis, Em. Dom. (2 Ed.) § 128. "Water is a prime necessity and in uensely populated districts cannot be obtained from the soil without danger to health. A supply of pure water, therefore, becomes a matter of public concern and its distribution by public authority by means of pipes laid in the public streets is an ancient and universal custom. Such a supply is not only a requisite to the public health but for the public safety as well, in order to afford the means of extinguishing fires and preventing conflagration and may even be connected with the use of the street for travel when used for sprinkling." Lincoln v. Com., 164 Mass. 1; Bishop v. North Adams Fire Dist., 167 Mass. 364; Newburyport Water Co. v. City of Newburyport, 108 Mass. 541; Crooke v. Flatbush Waterworks Co., 29 Hun (N. Y.) 245; City of Cincinnati v. Penny, 21 Ohio St. 499; City of Memphis v. Memphis Water Co., 52 Tenn. (5 Heisk.) 495; West v. Bancroft, 32 Vt. 367. The right to use either the streets or highways for such a purpose by private persons or corporations is not necessarily limited to or granted from a municipal corporation. It may be secured from the legislature in the first instance. See City of Louisville v. Louisville Water Co., 105 Ky. 754; Atlantic City Waterworks Co. v. Consumers' Water Co., 44 N. J. Eq. (17 Stew.) 427; Carlisle Gas & Water Co. v. Carlisle. Water Co., 182 Pa. 17. 1131 See § 463, post. 1132 Citizens' Gas & Min. Co. v. Town of Elwood, 114 Ind. 332; Tɔpeka Water Co. v. Whiting, 58 Kan. >18; Gas Light & Coke Co. v. City of Columbus, 50 Ohio St. 65, 19 L. R. A. 510. 1133 Kincaid v. Indianapolis Natural Gas Co., 124 Ind. 577, 8 L. R. A. 602; Windfall Natural Gas M. & O. Co. v. Terwilliger, 152 Ind. 364; Covington Reservoir v. Hopp, 12 Ky. L. R. 140; Bloomfield & R. Natural Gaslight Co. v. Calkins, 62 N. Y. 386; Van Brunt v. Town of Flatbush, 128 N. Y. 50; Goodson v. Richardson, 9 Ch. App. 221, 30 Law T. (N. S.) 142. (b) Limitations upon the power to construct. Not only may a public corporation be limited in its power to construct waterworks or contract therefor by the absence of statutory authority, but also when the statutory right exists by the fact that this course of action will throw upon the corporation a claim, obligation or debt in excess of the limit fixed by law.1134 In case of a 1134 See §§ 140 et seq., §§ 177 and 184; Kiehl v. City of South Bend, 76 Fed. 921, 36 L. R. A. 228; City of Ottumwa v. City Water Supply Co. (C. C. A.) 119 Fed. 315, 59 L. R. A. 604; Grace v. City of Hawkinsville, 101 Ga. 553; Gold v. City of Peoria, 65 Ill. App. 602; People v. Lake Erie & W. R. Co., 167 Ill. 283; City of Valparaiso v. Gardner, 97 Ind. 1; Taylor v. McFadden, 84 Iowa, 262, 50 N. W. 1070; Fidelity Trust & Safety Vault Co. v. City of Morganfield, 16 Ky. L. R. 647, 29 S. W. 442. An acquiescence in an irregular election will constitute an estoppel as against the municipality. Monroe Water Co. v. Heath, 115 Mich. 277; Raton Waterworks v. Town of Raton, 9 N. M. 70. "The statutes are a public notice of their contents, and a complainant contracting presumably with a knowledge that defendant was limited, by the statute creating it, to a two mill levy for the discharge of its obligation, will not be heard to complain that the trustees of defendant refused to transcend that power. "The power to make the contract in question, and to the proprietary grant and business portion of a quasi public nature, did not carry with it the power to depart from the mode prescribed by the statute for raising revenues with which to pay for the supply of water so contracted to be furnished. "While a court in equity, in an action against a town for the specific performance of a contract for the payment of water rentals, may declare the validity of the contract, it has no jurisdiction to compel the town to make a levy, the remedy in such case being by mandamus. "The contract of a town to pay more than it has the power to collect by taxation is not void, but obligates the town to exhaust its power, if necessary, to collect a tax sufficient within the statutory limitation the levy for two mills upon the entire tavazle property within its judisdiction." State v. City of Crete, 32 Neb. 568; Kingsley v. City of Brooklyn, 78 N. Y. 200; Woodside Water Co. v. Long Island City, 159 N. Y. 558; Farnsworth v. City of Pawtucket, 13 R. I. 83; Ellis v. City of Cleburne (Tex. Civ. App.) 35 S. W. 495; Seymour v. City of Tacoma, 6 Wash. 427. Farnham, Waters, § 151. "Certain conveniences are regarded as necessary to the enjoyment of life in a municipal corporation. When persons are seeking a home in such a place, unless business considerations are imperative, the question of its water supply and sewer system, the light and transportation facilities, its parks and public buildings, is always taken into consideration. * ** The cost of such things, is, however, very heavy and present payment for them would seriously discount the supposed advantages of having them; so the practice has been general to raise 1133 contract extending through a term of years with provisions for future payments, the obligation to make the payments is not considered a debt within the meaning of the phrase as ordinarily used.11 The argument in favor of the validity of such a contract, as already suggested, is that there is no present liability for the entire amount which would ultimately be paid under and by the terms of the contract if fully performed; the only liability which can arise is a present one for the payment of that part of the contract obligation already accrued which can be met from present and current revenues. The liability in all cases being a contingent one based upon an actual rendition of the services performed. Some authorities, however, have held to the contrary, notably, those in Illinois, where there is a constitutional provision the money for their construction by means of bonds or other long-time evidences of indebtedness. So far has this practice been carried in some instances that the interest of the indebtedness has been so great as not only to prevent capital from coming into the municipality, but it has actually driven capital already there away to such an extent as to leave the municipality prostrate, and forever destroy all possibility of its becoming a prosperous city. To remove the temptation to resort to such means for securing coveted improvements, the constitutions or statutes in many states have limited the amount to which a municipal corporation might become indebted in proportion to the entire amount of its taxable property. The result is that in many cases the debt limit is reached long before all the necessary conveniences have been secured and various devices have been adopted to circumvent the constitutional or statutory provisions and secure the end desired without coming in open conIflict with the constitution or statute." 1135 See authorities cited in § 159. See, also, City of Walla Walla v Walla Walla Water Co., 172 U. S. 1, affirming 60 Fed. 957; Keihl v. City of South Bend (C. C. A.) 76 Fed. 921, 36 L. R. A. 228; Cunningham v. City of Cleveland (C. C. A.) 98 Fed. 657; Fidelity Trust & Guaranty Co. v. Fowler Water Co., 113 Fed. 560; City of Centerville v. Fidelity Trust & Guaranty Co., 118 Fed. 332; McBean v. City of Fresno, 112 Cal. 159, 31 L. R. A. 794; Higgins v. City of San Diego, 118 Cal. 524; Danville Water Co. v. City of Danville, 186 Ill. 326, affirmed 21 Sup. Ct. 505, 180 U. S. 619; Grant v. City of Davenport, 36 Iowa, 396; Creston Waterworks Co. v. City of Creston, 101 Iowa, 687; Smith v. Inhabitants of Dedham, 144 Mass. 177; Ludington Water Supply Co. v. City of Ludington, 119 Mich. 480; Saleno v. City of Neosho, 127 Mo. 627; Lamar Water & Elec. Light Co. v. City of Lamar, 128 Mo. 188, 32 L. R. A. 157; Utica Water-Works Co. v. City of Utica, 31 Hun (N. Y.) 427; Territory v. City of Oklahoma, 2 Okl. 158; Stedman v. City of Berliu, 97 Wis. 505. |