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which forbids municipal or public corporations from becoming indebted "in any manner or for any purpose" in excess of a certain prescribed limit.1136

$461. The implied power to furnish water or to purchase apparatus for the extinguishment of fire.

One of the reasons most frequently given as the basis of the right of a public corporation to furnish a supply of water is theprotection of property from fire, it being a legitimate exerciseof the police power of the state or its delegated agencies to protect the property of those within their jurisdiction. The existence of the general power, it has been held, carries with it theimplied power to purchase and maintain suitable apparatus for the extinguishment of fires including buildings for its housing and its permanent maintenance and to arrange for a supply of water for, as has been said, "science, so far as we know, has not yet suggested any means of extinguishing great fires without the application of water." Where the power is expressly granted there can be no question of the right of the municipality to its exercise. The existence of this implied power may authorize

1136 Prince v. City of Quincy, 105 Ill. 138; Id., 128 Ill. 443. Where the court held that a contract between a public corporation and a water company by which the former agreed to pay a certain water rent payable in monthly instalments for a definite period was an incurring of indebtedness within the meaning of the constitutional clause and if the aggregate amount of such payments exceeded the constitutional limitation of indebtedness, the contract would be void. See, also, Cartersville Water-Works Co. v. City of Cartersville, 89 Ga. 689; City of Dawson v. Dawson Waterworks Co., 106 Ga. 696; Beard V. City of Hopkinsville, 95 Ky. 239, 23 L. R. A. 402; Niles Waterworks Co. v. City of Niles, 59 Mich. 312; Davenport v. Kleinschmidt, 6 Mont.

502; State v. City of Helena, 24: Mont. 521, 55 L. R. A. 336.

Read v. Atlantic City, 49 N. J. Law, 558, affirmed by divided court in 50 N. J. Law, 665; Smith v. City of Newburgh, 77 N. Y. 130.

1137 Desmond v. City of Jefferson,. 19 Fed. 483; City of Birmingham v. Rumsey & Co., 63 Ala. 352. The charter authorized the municipal authorities in this case "to do every matter and thing which they may deem necessary for the good order and welfare of said city." The court in sustaining the legality of a purchase of a fire apparatus said: "Good government and good order and welfare of a city imply much more than mere preservation of social order. Sanitary regulations and appliances for extinguishing fires, to an extent reasonably

the rendition of aid to local and private engine and hook and ladder companies.1188

§ 462.

The acquisition of a water supply.

The grant of the power to furnish a water supply carries with it in addition to the right to construct and operate a plant for

commensurate with the city's wants, to be judged of by the corporate authorities, are certainly within the purview of good city government. We do not wish to be understood as affirming that any specific grant of power is necessary to the perform ance of this very necessary police function. We hold it is inherent in every city government, as one of its incidental powers, unless taken away by statute." Clark v. City of South Bend, 85 Ind. 276. "It was long ago declared that the power to prevent danger from fire is an incidental one belonging to all municipal corporations."

Baumgartner v. Hasty, 100 Ind.

.575. "The rule has always been that a municipal corporation has the inherent power to enact ordinances for the protection of the property of its citizens against fire." Corporation of Bluffton v. Studabaker, 106 Ind. 129; City of Burrton v. Harvey County Sav. Bank, 28 Kan. 390; Carleton & Co. v. City of Washington, 38 Kan. 726; Allen v. Inhabitants of Taunton, 36 Mass. (19 Pick.) 485.

v. Webb City, 78 Mo. App. 422.
"The power given a city of the
fourth class, by § 4940, Rev. St. 1879,
to 'prevent and extinguish fires' and
to provide for the 'health and wel-
fare of the city, its trade, commerce
and manufacturies,' includes the au-
thority to secure a contract for a sup-
ply of water.
Science, so

far as we know, has not yet sug-
gested any adequate means of ex-
tinguishing great fires without the
application of water. * * * A fire
engine without water would be quite
a useless machine in the hands of a
city government. Water is quite as
indispensable in extinguishing fires
as a fire engine.
It is ap-
parent that the reasons why the
grant of power to suppress fires
should carry with it the power to
procure water to extinguish fires
are much more cogent than those
which sustain the power to pur-
chase the fire engines."

Green v. City of Cape May, 41 N.
J. Law, 45; Witheral v. Mosher, 9
Hun (N. Y.) 412; Hunneman & Co.
v. Fire Dist. in Jamaica, 37 Vt. 40.
See, also, Corporation of Bluffton v.

Webb City & C. Waterworks Co. Studabaker, 106 Ind. 129, 13 Am. &

1138 Torrey v. Inhabitants of Millbury, 38 Mass. (21 Pick.) 64. An appropriation of public moneys to wards the purchase of a fire engine, the balance being raised by individual and private subscriptions authorized. The legality of the action was sustained by reason of a

general duty resting upon municipal corporations to provide whatever shall be deemed "an object of common convenience and necessity." Van Sicklen v. Town of Burlington, 27 Vt. 70; Allen v. Inhabitants of Taunton, 36 Mass. (19 Pick.) 485.

the accumulation and distribution of the water, the power to obtain from some natural source the water itself.1139

The right of a public corporation, as suggested in the Minneapolis Mill Co. Case, supra, to divert water from some natural source, will depend upon the character of the waters-whether

Eng. Corp. Cas. 529. The grant of the power to extinguish fires or purchase fire engines carries with it the implied power to arrange for a supply of water either by the construction of works or by contract with private companies. Bridgford v. City of Tuscumbia, 16 Fed. 910; National Foundry & Pipe Works v. Oconto Water Co., 52 Fed. 29; Salena v. City of Neosho, 127 Mo. 627, 27 L. R. A. 769; Atlantic City Water Works Co. v. Atlantic City, 39 N. J. Eq. (12 Stew.) 367; Rome v. Cabot, 28 Ga. 50; Carleton v. City of Washington, 38 Kan. 726. But see Greenville Waterworks Co. v. City of Greenville (Miss.) 7 So. 409. 1139 Minneapolis Mill Co. v. St. Paul Water Com'rs, 56 Minn. 485, affirmed 168 U. S. 349. The court in its opinion by Collins, Judge, says:

1. "The plaintiffs are riparian owners on a navigable or public stream, and their rights as such owners are subordinate to public uses of the water in the stream. And their rights under their charters are, equally with their rights as riparian owners, subordinate to these public uses.

2. "There can be no doubt but that the public, through their rep resentatives, have the right to apply these waters to such public uses without providing for or making compensation to riparian owners.

3. "The navigation of the stream is not the only public use to which these public waters may be thus

applied. The right to draw from them a supply of water for the ordinary use of cities in their vicinity is such a public use, and has always been so recognized. At the present time it is one of the most important public rights, and is daily growing in importance as population increases. The fact that the cities through boards of commissioners or officers whose functions are to manage this branch of the municipal government, charge customers for water used by them, as a means for paying the cost and expenses of maintaining and operating the plant, or that such consumers use the water for their domestic and such other purposes as water is ordinarily furnished by city waterworks, does not affect the real character of the use, or deprive it of its public nature.

4. "In thus taking water from navigable streams or lakes for such ordinary public uses, the power of the state is not limited or controlled by the rules which obtain between riparian owners as to the diversion from, and its return to, its natural channels. Once conced-ing that the taking is for a publicuse, and the above proposition naturally follows.

"Turning now to the provisions of defendant's charter, Laws 1885, c. 110, it will be seen that the board was not limited to public waters as the sources of its contemplated additional supplies. It was authorized to appropriate private waters

public, and to what extent, or private. If the waters are private property in all respects, a public corporation cannot divert them even by percolation or impair in any way the right of the owners to the quality, quantity or time of flow without the payment of compensation; either through a voluntary sale by the owner or a forced one through the exercise of the power of eminent domain.1140 On the other hand, if the waters are public in their character, then the rights of riparian owners are subordinate to all public uses of such water. 1141 It is clear, however, that even under these principles, a public corporation would not have the

for the purpose, and hence the provisions of the act which provide for the ascertaining of, and making compensation for, damages caused by a diversion of water, must be construed as applying solely to cases where the board took private property by using or diverting merely private waters. Inasmuch as the state itself could use the waters in question, as against the plaintiffs, without compensation, it would require very clear language to that effect to justify the conclusion that the Legislature intended to impose on respondent board the burden of paying plaintiffs for what, as against the public, they did not own. If the right granted by the Legislature had been exclusively to divert waters from a certain specified body of public water, such as one of the 'great' ponds of Massachusetts, referred to in the cases cited from the reports of that state, SO that the provisions in Laws 1885, c. 110, relating to compensation could not apply to any thing else, to the owners of private waters, for instance,-the construction contended for by appellants, that it was intended they should be compensated in case damages resulted, might arise by implication."

1140 United States v. Great Falls Mfg. Co., 112 U. S. 645; Pine v. City of New York, 103 Fed. 337; Ulbricht v. Eufaula Water Co., 86 Ala. 587, 4 L. R. A. 572; Fifield v. Spring Valley Water Works, 130 Cal. 552. A riparian owner is not entitled to an injunction to restrain the diversion of the storm or flood water of the stream.

Harding v. Stamford Water Co., 41 Conn. 87; City of Emporia v. Soden, 25 Kan. 588; Hall v. City of Ionia, 38 Mich. 493; Higgins v. Flemington Water Co., 36 N. J. Eq. (9 Stew.) 538; Sparks Mfg. Co. v. Town of Newton, 57 N. J. Eq. 367; Salem Flouring Mills Co. v. Lord, 42 Or. 82, 69 Pac. 1033, 70 Pac. 832; Haupt's Appeal, 125 Pa. 211, 3 L. R. A. 536; Philadelphia & R. R. Co. v. Pottsville Water Co., 182 Pa. 418; Barre Water Co. v. Carnes, 65 Vt. 626, 21 L. R. A. 769; Leonard V. Village of Rutland, 66 Vt. 105; Rigney v. Tacoma Light & Water Co., 9 Wash. 576, 26 L. R. A. 425; City of New Whatcom v. Fairhaven Land Co., 24 Wash. 493, 54 L. R. A. 190.

1141 City of Elgin v. Elgin Hydraulic Co., 85 Ill. App. 182; City of Canton v. Shock, 66 Ohio St. 19, 58 L. R. A. 637; Minneapolis Mill Co. v. St. Paul Water Com'rs, 56 Minn. 485.

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right to divert or use the water to such an extent or in such a manner as to destroy entirely or even impair the character and use of the waters as public. A public corporation, to illustrate, would not have the right to divert, for a water supply, the waters of a navigable stream to such an extent as to destroy its character as such.1142 A supply is usually secured from artesian wells, running streams or other natural bodies of water.1143 The right of a municipality to a water supply and the legal questions involved depend largely upon the value, extent and source of the supply and therefore upon its value as a merchantable commodity. In sections of the country where the rain-fall is large and all sources of supply are ample in their extent, the question of securing it is of no importance, but in other sections where the rainfall is light or the demand large, and the value of water as a commodity is high, these questions may be of great moment. A publie corporation in either case must acquire a right to the use of water by its purchase,1144 through prescription1145 or the process of eminent domain.1146 The property of riparian owners or water rights cannot be taken without the payment of just compensa

1142 Sumner v. City of Glovers- Braintree, 157 Mass. 345; Gregory ville, 35 Misc. 523, 71 N. Y. Supp. v. Lake Linden, 130 Mich. 368, 90 1088; Smith v. City of Rochester, N. W. 29; Higgins v. Flemington 92 N. Y. 463; City of Philadelphia Water Co., 36 N. J. Eq. (9 Stew.) v. Gilmartin, 71 Pa. 140. See Val- 538; Appeal of Haupt, 125 Pa. 211, paraiso City Water Co. v. Dickover, 3 L. R. A. 536. 17 Ind. App. 233, 46 N. E. 591.

1143 State v. Board of Assessment, 1 S. D. 62; Miles v. Benton Tp., 11 S. D. 450.

1144 Saunders v. Bluefield Waterworks & Imp. Co., 58 Fed. 133; Stein v. Burden, 24 Ala. 130; Vernon Irr. Co. v. City of Los Angeles, 106 Cal. 237; Strickler v. City of Colorado Springs, 16 Colo. 61; City of Baltimore v. Day, 89 Md. 551; Bailey v. Inhabitants of Woburn, 126 Mass. 416; Para Rubber Shoe Co. v. City of Boston, 139 Mass. 155; Warren v. Spencer Water Co., 143 Mass. 155; Mills on Monatiquot River v. Inhabitants of Randolph, Holbrook &

Lord v. Meadville Water Co., 135 Pa. 122, 8 L. R. A. 202. The purchase by a water company of a tract of land containing a spring does not give it the right to appropriate all the waters of that spring. In re Barre Water Co., 62 Vt. 27, 9 L. R. A. 195. See, however, the cases of Minneapolis Mill Co. v. St. Paul Water Com'rs, 56 Minn. 485, and Watuppa Reservoir Co. v. City of Fall River, 147 Mass. 548.

1145 Vernon Irr. Co. v. City of Los Angeles, 106 Cal. 237; Clark v. Amsterdam Water Com'rs, 51 Hun, 642, affirming 119 N. Y. 629. 1146 See § 463, post.

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