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the remaining lot was expressed by them though without faucets attached to be used by prior to the judgment obtained by Miller for furnishing water directly. $47.50. After that judgment the amount of w

ount of! (Ed. Note.-For other cases, see Waters and $2.50 tendered by the plaintiff to complete | Dig.

| Water Courses, Cent. Dig. 88 295, 296; Dec.

203(13).] the transaction was not sufficient to give the


Wimpen w defendants the price of the lot as originally PUBLIC WATER SUPPLY – REGULATIONS — agreed upon, and the defendants were prac- WAIVER. tically compelled, in the position in which

A public water company whose schedule of

rates, established prior to May, 1907, showed a they found themselves, to refuse to give the

rate of $5 per annum for a bathtub installed plaintiff a deed. The recovery by Miller of upon the premises of the consumer, but which the amount which he had paid seems to have for a number of years had not exercised its

right to charge such rate in cases where a cus. upset the whole deal so far as the remaining

tomer, though having bathtubs in his house, bad lot was concerned, and to have opened the cut off the direct water supply thereto, was not way for the plaintiff to recover the amount required to continue such practice after it found which she had paid to the defendants.

that customers were taking advantage of its

leniency and were surreptitiously using water [3, 4] The defendants further contend that in the

in bathtubs for which no payment was made; the plaintiff cannot recover in this action be- and a rule that no deduction would be made cause, with full knowledge of the suit of Cal. | for fixtures claimed to be nonused was merely vin B. Miller against them, she stood by and

a notice to water takers that the company in

tended to enforce the rate already established, permitted said Miller to sue for the sum of

and hence did not violate its contract with the $147.50, in which amount was included the town in May, 1907, that during the term of a sum of $25 which she had paid, and because,

franchise then granted, it would not charge in further, she was present in court to testify

excess of the rates then established.

[Ed. Note.-For other cases, see Waters and in behalf of the plaintiff in that case. The Water Courses. Cent. Dig. § 290; Déc. Dig. plaintiff here was not a party to the former em 203(1).] suit of Miller. She did not testify as a wit-3. WATERS AND WATER COURSES 203(10)ness therein, and was not present at the trial, PUBLIC WATER SUPPLY-REGULATION-REAalthough she was summoned as a witness at


A rule of a public waterworks company desome previous time when the case was not

claring that no deduction would be made for fisreached. We cannot say that under the tes tures claimed to be nonused, and that every firtimony upon this point the plaintiff is estop ture used or not would be deemed used, and ped from prosecuting her suit. Besides it is

would be charged for while connected with the

water pipe or waste pipe, adopted to collect its clear that the amount awarded to Miller in

flat rate of $5 for the first bathtub and $4 for the former suit only covered the sum of $47. each additional tub, and to prevent a growing 50 which he had himself advanced, and can

use of water in tubs not directly connected by

pipes with its water supply, was a reasonable not be deemed to include the $25 furnished

regulation. by the plaintiff. We think that the plaintiff [Ed. Note.-For other cases, see Waters and is entitled to recover the sum of $25 which / Water Courses, Cent. Dig. $ 294; Dec. Dig. she advanced.

m203(10).] The plaintiff's exception to the denial of Appeal from Superior Court, Providence her motion to direct a verdict in her favor and Bristol Counties; Willard B. Tanner, for $72.50 is overruled. The plaintiff's excep- | Judge. tion to the granting of the defendants' mo | Bill for injunction by James J. Walsh tion to direct a verdict in their favor is sus-against the Bristol & Warren Waterworks. tained. The defendants may appear before Decree for defendant dismissing the bill, this court on Monday, July 3, 1916, at 10 and plaintiff appeals. Affirmed, and cause o'clock a. m., if they shall see fit, and show remanded to the superior court, with direccause, if any they have, why this case should tion to vacate the preliminary injunction not be remitted to the superior court, .with continued in force pending the appeal. direction to enter judgment for the plaintiff

Cooney & Cahill, of Providence, for comin the sum of $25.

plainant. Mumford, Huddy & Emerson, of Providence (Charles C. Mumford, of Provi

dence, of counsel), for respondent. (39 R. I. 292) WALSH v. BRISTOL & WARREN WATER PARKHURST, J. This is a bill in equity WORKS. (No. 326.)

filed in the superior court sitting for the (Supreme Court of Rhode Island. June 13,

counties of Providence and Bristol, wherein the complainant seeks to enjoin the respond

ent from shutting off the water supply at 1. WATERS AND WATER COURSES Om 203(13) PUBLIC WATER SUPPLY-INJUNCTION-SUF.

- his house in pursuance of certain rules esFICIENCY OF EVIDENCE.


tablished by the respondent. The superior On a bill to enjoin a water company from court entered its decree dismissing the bill, shutting off the water supply at plaintiff's tene- and the complainant thereafter duly perment property in pursuance of certain rules es- | fected an appeal from that decree to this tablished by the company, evidence held to show that plaintiff's bathtubs, connected with the court. The cause is now be e us upon this sewerage system, were being used by his tenants, l appeal.

10w before is

It appears from the pleadings and testi-, thereafter decided not to have water in the mony that the respondent is a corporation bathrooms and so notified the respondent, created by the General Assembly of the state and was informed that in that case he of Rhode Island for the purpose of supply- should remove the pipes and water fixtures ing water for commercial and domestic pur- provided in connection with the bathtubs, poses to the residents of Bristol, Warren, which he did. and Barrington, and for the purposes of its The answer further avers that since the business, rightfully uses the public highways, removal of the faucets the plaintiff and his roads, and streets within those towns.

tenants have used the bathtubs without the For many years the plaintiff has been a knowledge and consent of the defendant by customer of the respondent and has had up- drawing water into a pail by means of a on premises owned by him certain faucets, faucet connected with a set bowl and the water taps and receptacles for water, all of pipes connected with the defendant's syswhich have been supplied and furnished with tem; that the plaintiff in his application water through the pipes and mains of the re for the use of water agreed to be governed spondent corporation.

by the defendant's rules; that when the conIn May, 1907, the town of Bristol and the tract was made between the defendant and respondent corporation entered into a con- the town of Bristol there were certain flat tract by which the respondent acquired an rates adopted as follows, which rates have exclusive right and privilege to use the pub- remained continuously and are now in force: lic streets, lanes, and squares of that town. "Dwelling houses occupied by one family, for for the laying and maintaining of its pipes first faucet, $7.00. for a period of 50 years from May 15, 1907.

"For each additional faucet to be used by

same family, $3,00. In this contract is the following clause: "For the first water-closet, self-closing, $5.00.

"The company will not, during said term, "For each additional water-closet, $4.00. charge for water for domestic or manufactur "For the first bathtub, $5.00. ing purposes in excess of the rates now estab "For each additional bathtub, $4.00. lished, and will, as soon as business conditions "When the house is occupied by more than and the requirements of the company will rea one family, one faucet only being used by all, for sonably warrant, make reasonable and equitable each family, $6.00. reductions of the rates or charges for water for “When a water-closet or bathtub is used by said purposes.

more than one family, for each family, $5.00." The bill avers that the plaintiff has als! The answer further avers that for a numways paid all sums of money properly re | ber of years prior to November 1, 1912, cerquired by the defendant for the use of water tain of the residents of Bristol supplied by on his premises at 38 Bourne street in Bris- | the defendant with water have had bathtubs tol, and the respondent has furnished him and other fixtures not directly connected by with water, and the plaintiff is ready and |

and the plaintiff is ready and pipes with the defendant's supply and have willing to pay such sum as is properly re-used water in practically the same amount as quired and to comply with all reasonable

though they were connected. This was acregulations; this allegation is denied by the

complished by various devices, by having a answer.

bathtub set in the same room with the set On the 18th of January, 1913, the defend bowl, and filling the bathtub with a rubber ant delivered to the plaintiff a notice that tube; by cutting a hole in the partition beunless a bill for water rates amounting to tween the bathroom and the kitchen and by $23 for the premises at 38 Bourne street was leading a tube or tin spout through the partipaid within a week thereafter, the water tion; by screwing a pipe into the flush tank would be shut off, which, by the plaintiffs of the closet or siphoning water from such statement, would cause irreparable damage. The allegation of the delivery of the notice The answer further avers that for the to the plaintiff by the respondent is admit- early portion of the time this secret use of ted by the answer.

the water supplied by the defendant was The answer further avers that since the a matter of small financial importance but year 1899 the plaintiff has owned the prem- recently it has increased until, to the knowlises consisting of a house in which there are edge of the defendant, there are more than three tenements leased to different tenants; 50 cases. In consequence of this, prior to that in each of said tenements is a water November 1, 1912, the defendant adopted a faucet with a bowl connected with the sewer- rule which is numbered 16 and which is as age system, and that in the tenement on the follows: first floor and also in the tenement on the "16. No deduction will be made for fixtures second floor there is a bathtub, to which claimed to be nonused; every fountain, waterthere are no faucets attached to be used by closet, set basin, sink or other fixture used or

not will be deemed and held used, and will be furnishing water directly, but each of said

charged for so long as such fountain, watertubs is connected with the sewerage system; closet, set basin, sink or other fixtures shall rethat these tubs were installed when the main connected with the water pipe or waste house was built, and at that time water pipe.” pipes provided with faucets connected with It further appears that the defendant gave he defendant's water system were installed the plaintif notice of the adoption of this


about November 1, 1912, sent the plaintiff a, The questions raised by the record are: (1) memorandum of the amount due at the rate Does rule 16, which was enacted November of $46 per annum or $23 for the then en-11, 1912, work an increase in the charge for suing six months. This included a charge for water for domestic purposes in excess of the water to be furnished to faucets and rates established under the contract with the water-closets at the established rates, and town? (2) Is rule 16 a reasonable regulaalso a charge for water at the establish- tion? ed rates to be furnished for use in the two [2] As to the first question we find no bathtubs. The plaintiff offered to pay for ground to sustain the plaintiff's contention everything but the amount charged for bath- that by virtue of "rule 16" there has been tubs, and upon the defendant refusing to ac- any increase of rates. “Rule 16" is not in cept that sum and sending him a notice of the nature of a new rule; it is rather a its intention to shut off the water as afore- | notice to water takers that the defendant insaid, this bill was brought to enjoin such tends to enforce a rate already existing, and action.

which was in force long prior to and in May, One of the rules is as follows:

1907, at the time when the defendant made “17. The regular annual rate for the use of its contract with the town of Bristol. As water shall be payable in advance semiannually, I above shown the rate of $5 per annum for a on the first day of May and November in each

bathtub installed upon the premises of the year. In all cases of nonpayment of the wa- / ter rate in thirty days after the rent is due,

consumer was contained in the schedule of the supply may be shut off and shall not be let rates established by the company prior to on again except on payment of the rent due and

May, 1907; and the same charge is now the sum of two ($2.00) dollars."

made to the plaintiff as shown by the testiThe averments of the answer, above set

mony. It will be presumed in the absence of forth, are fully proved. The only issue be

evidence to the contrary that the rates above tween the parties therefore is as to the right

set forth were adopted by the company in fulness of the defendant's charge for the

accordance with the experience of other use of the two bathtubs which were connect

water companies, and the fairness of these ed with the sewerage system but connected

rates is nowhere disputed in this cause. The with which there was no faucet supplying

fact that the defendant' company for a numwater directly from the defendant's system.

| ber of years waived its right to charge this (1) In cross-examination the plaintiff ad

rate in cases where the customer, although mitted that, since the faucets were discon

having bathtubs in his house, had cut off the nected, the bathtubs have been used.

direct water supply to these tubs, furnishes "Q. 69. Mr. Walsh, how have these bathtubs been used since you disconnected the faucets?

no reason why the defendant should be held A. I can't tell you how they have been used

to continue this practice after it found that for six or seven years. When I lived there my customers were taking advantage of its lenwife used to take water in a pail and put it in

iency, and, as in this case, were surreptithe tub. Q. 70. Where did she take the water from? A. From the kitchen sink. Q. 71. A

tiously using water in bathtubs for which no water faucet connected with the Bristol & War- payment was made. The practice of charg. ran Water Company's supply? A. Yes, sir. Q. ing flat rates for water used through differ72. Filled the pail and then poured the water and into the tub? A. Yes; carried it to the kitchen., e

Tent classes of fixtures and in connection with Q. 73. Then pulled the plug and let the water various household appliances such as bathrun down the waste pipe into the sewer. A. tubs, closets, sinks, sprinklers, etc., is too Yes, sir. Q. 74. So far as you know that has

well established and recognized to require been continued ? A. So far as I know. One lady upstairs has been there ten years, and the any discussion, and no contention as to the one down stairs has been there between five and propriety of such practice is raised in this six years. What is going on there now I

case. No cases are cited by the plaintiff's can't say. I never see them using the tub. Q.

counsel which in any way support his conten75. Ever hear them say? A. No, sir. Q. 77. The tubs, however, are still connected with the tion in this respect. sewer? A. Yes, sir. Q. 78. And they have [3] As to the second question we find that plugs in the waste pipe, so that the running out of the water can be controlled? A. Yes, sir. rule 16 is a reasonable regulation. As above Q. 79. And they can be used if the water is put shown rule 16 is not strictly a new rule and in them? A. Yes, sir. Q. SO. Just the same does not vary previous regulations in force. as they could be when you were there? A. Yes; as they always have been."

Prior to November 1, 1912, the company, be These admissions by the plaintiff are very

lieving that the amount of water surrepti

tiously taken was trifling in financial value, significant, particularly when it appears that he did not call any of his tenants to show

made no effort to enforce payment for water that these bathtubs were not used as claimed

furnished for use in bathtubs, unless that by the defendant. We think it is amply water was furnished directly through the proved by these admissions that the plain-pipes and fixtures attached to and adapted to tiff's bathtubs were being used by his tenants / be used with the tubs. just as the answer claimed that they were. As the company became aware of the ex.

Upon this state of facts the presiding jus- tent of this surreptitious use it enacted rule tice of the superior court entered his decree 16, which practically notified its customers dismissing the bill, and plaintiff appealed as that thereafter it would insist upon payment


which was connected with the system of sew-Such a regulation for the sale of its water furerage.

nished through hydrants, where the quantity

used cannot be or is not measured, is essential If water furnished by the company is used

to protect the rights and safety of the company, in a bathtub it is immaterial to the company

and may be necessary to enable it to meet its that water is obtained or to how much obligations to the public, and its duty to fur

nish water to all inhabitants of the city alike trouble the customer puts himself in order

and without discrimination. In determining the to o

ility of so using reasonableness or unreasonableness of a rule the water furnished by the company is suffi. adopted by a water company chartered to supply cient to warrant the company in protecting a city and its people with water, we must necesitself against such use without having to

sarily take into consideration its relation to the

city, and its compacted population, and the prove that in a particular case it was so used, / various elements composing such a population. although in the case at bar such proof is It has no right to base a rule on the theory that furnished. That this rule is reasonable and the population, as a whole,

the population, as a whole, is dishonest. But it

has the right to adopt a rule which, while giving is needed for the protection of the respond

the honest citizen what he pays for, will prevent ent corporation is shown not only by the tes- the dishonest from getting what he never paid timony of the complainant above quoted, but for, and never intended to pay for, and said also by the allegations of the answer which

he never wanted.” show the possibilities of consumers securing The parallel between the case cited and water from the respondent corporation sur the case at bar is very close. The water comreptitiously and without payment therefor; i pany cannot be expected to furnish water and these allegations of the answer are fully without compensation. The ordinary and sustained by the testimony of the treasurer normal use of a faucet fixture does not inof the respondent corporation given on the clude a supply to bathroom fixtures or aphearing of this case before the superior court pliances. The rates as established by the and now brought before this court.

company are made in view of that fact, and A case closely in point is Harbison v. Knox specified charges are made for the supply of ville Water Company (1899, Ch. App. Tenn.) water to ordinary toilet and bathroom fix53 S. W. 993, in which case the general prin tures. The rates contemplate that every inciple applicable to the question is stated and habitant of Bristol who uses the company's discussed, and a rule very similar to rule water for the purpose of supplying a bath16 is sustained as reasonable. In that case tub shall pay for such water. The most ob the defendant company refused to supply vious method of obtaining such supply is by water to an inhabitant of Knoxville whose having a supply fixture or faucet at the tub water was supplied by a hydrant with a bibb, itself. That was the common method adoptupon the end of which was a screw, so that a ed in Bristol in the early days of the history hose might be attached, because of the re of the water company. Certain of the inhabfusal of the customer to pay the charge made itants afterwards discovered that if they for water for sprinkling-he claiming that had bathtubs connected with the sewer they he did: not intend to use the fixture for could obtain the company's water for use in sprinkling purposes-and because of his re- | those bathtubs by various devices, already fusal to file down the screw on the bibb so enumerated. that a hose could not be attached thereto. In It is obvious that if bathtubs are connected the opinion written by Wilson, J., it is said: with the sewer in such a manner that con

53 S. W. 995 : “The law is well settled that sumers can supply themselves with water in water companies organized and vested with the any of the clandestine methods now in use, powers given to the defendant company, and ob- or in any which may hereafter be devised, ligated to furnish cities and their inhabitants it is impracticable for the company to mainwith water, are in the nature of public corporations, engaged in a public business, and are charg.tain a constant watch upon the occupants of ed with the public duty of furnishing to the cities the several tenements to which the company and their inhabitants water, alike, and without supplies water, and it is only by the adoption discrimination and without denial, except for ground, and upon sufficient cause. It is equally!

1 of a rule like rule 16 that the company can well settled that such companies, while thus efficiently protect its rights. charged and obligated, may adopt reasonable The number of consumers using these inrules for the conduct of their business and the direct and unauthorized methods of obtainoperation of their plants, and such rules are binding on their patrons, and may be enforced,

ing a water supply for their bathtubs has even to the extent of denying water to those who been and is on the increase, and unless the refuse to comply with them. • . The ques company shall be sustained in enforcing rule tion, therefore, in every case of this character, 16 it is not difficult to forsee the time when is the reasonableness or unreasonableness of the rule assailed by the citizen asking for a

the company will be compelled to furnish supply of water, and invoked by the company in without compensation large and still larger justification of its refusal to furnish it.***"

quantities of water for use in the bathtubs 53 S. W. 996: “The rule or requirement of the company that the party taking and paying

| in the territory supplied by the company. for water for domestic purposes only must put The plaintiff cites one authority which his hydrant appliances in condition for such use seems at first sight to have a direct bearonly, and not have it in a condition to use wa-lin ter through and from them for sprinkling pur

ing in support of his contention, viz., Farnposes. unless he pays a reasonable rental' for ham, Water and Water Rights, vol. 1, p. 881: the use for the latter purpose, is, we think, rea- "The water company cannot refuse to fur. sonable, and one that the company can enforce. I nish water because there are bath accommodations on the premises, and the privilege of water, a matter of general equity practice, and also for such purpose is not paid for, if they are as a citizen and property owner in the town not connected with the water supply.”

of Bristol and by reason thereof entitled to This text-writer cites only one authority in the protection of the

the protection of the contract made between support of the text quoted, namely, Sheffield

the company and the town in respect to Waterworks v. Brooks, L. R. & Q. B. Div. p. |

rates. See Edwards v. Milledgeville Water 632. This case, however, throws no light Co., 116 Ga. 201, 42 S. E. 417 (injunction), upon the question now before the court.

and cases cited, supra; Pond v. New Rochelle That case was an appeal from an adjudica- / Water Co., 183 N. Y. 330. 76 N. E. 211, 1 L. tion of a magistrate upon a criminal com- | R. A. (N. S.) 958, 5 Ann. Cas. 504 (injuncplaint against the waterworks to recover a

tion); Robbins v. Bangor Ry., etc., Co., 100 penalty for not furnishing a supply of water. Me. 496. 62 Atl. 136. 1 L. R. A. (N. S.) 963 The complaint was made under a statute. In

(mandamus); Smith v. Birmingham W. W. the opinion it was stated that the primary

Co., 104 Ala, 315, 16 South, 123 (injunction); question is whether, under the statute, the Levy v. New Orleans W. Co., 38 La. Ann. 25 water company has the right to require the injunction): Ernst y Same 39 La An consumer to furnish a meter, and that the

2 South. 415 (injunction); Rogers Park W. secondary question is whether under the stat- Co. v. Fergus, 178 Ill. 571, 53 N. E. 33 (manute the water company has the right to re- damus). In two of these cases, as indicated, fuse to furnish water for domestic purposes the proceeding was by way of mandamus; in other than for baths to premises where the the rest by injunction. The defendant makes connection between the water supply and the no contention on this point. laucet at the bathtub has been severed, but Defendant cites a few other cases sustainthe waste pipe of the tub remains connected ing as reasonable certain rules adopted by with the sewer, against the expressed objec- water companies for the protection of its llon of the water company. The statute un- plant and to prevent waste of water. See der which the complaint was brought enu- | Louisville Water Co. v. Wiemer, 180 Fed. merates the causes which permit the water | 257. 64 C. C. A. 503; Pocatello Water Co. v. company to shut off the supply of water, and Standley, 7 Idaho, 155, 61 Pac. 518; Kimball the case decided that the circumstances were | v. N. E. Harbor W. Co., 107 Me. 467, 78 Atl. not within the statutory provisions. There | 865, 32 L. R. A. (N. S.) 805; Watauga W. Co. was no general regulation of the water com- lv. Wolfe, 99 Tenn. 429, 41 S. W. 1060, 63 Am. pany applying to the situation, nor did the St. Rep. 841. These cases are simply referfacts disclose any situation such as is dis- red to for the purpose of showing what rules, closed in this case of a determination on the either general or special, courts have considpart of the consumers to obtain water with-ered reasonable under peculiar circumstancout paying therefor. The reasonableness of les. This court is of the opinion, upon all the a regulation requiring payment upon the ba

facts in evidence, that the complainant has sis of a bathtub, although such tub is not di

shown no equity for relief under his bill. rectly connected with the water supply, but is

The decree appealed from, dismissing the connected with the sewer, was neither raised

bill, is affirmed, and the cause is remanded to nor considered. See, also, Allen v. Duluth

the superior court for the counties of Provi. Gas & Water Company, 46 Minn, 290, 48 N.

dence and Bristol, with direction to vacate W. 1128.

the preliminary injunction which has been The company has the right to cut off a wa

continued in force pending this appeal. ter supply for nonpayment of proper charges. It is not understood that this principle is questioned, but see the following cases: Farnham on Waters, etc., vol. 1, p. 876; Hieronymus Bros. v. Bienville Water Supply

CHASE v. CRAM. (No. 324.) Co., 131 Ala. 447, 31 South, 31; Robbins v. (Supreme Court of Rhode Island. June 15, Railway Co., 100 Me. 496, 62 Atl. 136, 1 L.

1916.) R. A. (N. S.) 963; Harbison V. Knoxville wa APPEAL AND ERROR 1152-MODIFICATION ter Company, supra; Poole v. Paris Moun- OF DECREE--NECESSITY, tain Water Co., 81 S. C. 438, 62 S. E. 874, The decision of the Supreme Court, and the 128 Am. St. Rep. 923; Wood v. Auburn, 87

decree, in suit for an injunction to restrain in

terference with a water right, that the grant to Me. 287, 32 Atl, 906, 29 L. R. A. 376; Girard

complainant of the privilege to take water from L. Ins. Co. v. Philadelphia, 88 Pa. 393.

a spring conferred a right which passed to ber We find no cases cited on behalf of plain

heirs and assigns, was unaffected by the deci

I sion of the Supreme Court, and the decree, in tiff which in any way or to any extent sup

suit establishing that the former complainant's port his contention that rule 16 is unreasona right to take water was an easement in gross, ble under the undisputed facts of this case; so that petition for modification of the decree in all such cases have been carefully examined,

the latter suit to protect the "heirs and as

signs," who were protected by the first decree, but we find none which requires comment

will be denied. further than as above.

(Ed. Note.-For other cases, see Appeal and Plaintiff cites several cases which support | Error. Cent. Dig. 88 4483-4496; Dec. Dig. his right to the remedy by injunction both as / 1152.]

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