No. 13623 INTHE SUPREME COURT OF THE STATE OF MONTANA 1977

VIOLET SIMMONS, Plaintiff and Appellant,
-vsCITY OF GLENDIVE, MONTANA, et al., Defendants and Respondents.

Appeal from: District Court of the Seventh Judicial District, Honorable M. James Sorte, Judge presiding. Counsel of Record: For Appellant: Calton and Stephens, Billings, Montana Robert L. Stephens argued, Billings, Montana For Respondents: Richard A. 

### :SZmonton argued, Glendive, Montana Jerry D. Cook, Glendive, Montana

-- Submitted: September 21, 1977

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# qv Filed: ULL , 13Mr. Justice Daniel J. Shea delivered the Opinion of the Court.

Plaintiff Violet Simmons appeals from a judgment entered in the District Court, Dawson County, in favor of defendants the City of Glendive, Montana, and several of itsofficials. Plaintiff brought this action in 1971, seeking damages for alleged wrongful and illegal termination of water services to property she owned inGlendive. Atthat time the City of Glendive operated a citywater system and supplied and distributed water services to residents within the city. On April 12, 1976, following trialbefore the courtwithout a jury, the District Court entered findings of fact and conclusions of law in favor of defendants, hereinafter referred to as the City. Plaintiff moved to set aside the findings and conclusions or alternatively, for a new trial. These motions were denied. Judgment was entered against plaintiff. This appeal followed. In 1958, plaintiff began building a structure atthe rear of

a lot she owned inGlendive. On the front portion of this lot

was a four-plex apartment building owned by plaintiff comprising Nos. 314, 314 

### 112, 316 and 316 112West Brennan Street. The structure atthe rear of this lotoriginallywas tobe a garage, but at some point during 

### its constructionplaintiff decided to make it a residence. Water and sewer lines were placed between the City's main line and this structurejust after construction started..The lineswere hooked up and the water servicebecame operative some years laterwhen the structurewas firstused as
a home. Plaintiff thought the house was receiving water from the metered line running into the four-plex- when, infact, it was receiving unmetered water directly from the City's main line.In 1969 the City discovered the smallhouse was receiving water not paid for, because itwas not metered. The mayor then instructed the citymeter man to inform plaintiff she was violating a city ordinance by receiving unmetered water, and tomake arrangements for the installationof a water meter atthe house. While there isa dispute in the testimony as towhat occurred when the meter

man attempted toinstall the meter, it 

### is clearplaintiff refused installationwhen itwas offered. Water service to the small house was cut off on the mayor's order when he learned plaintiff had refused toallow installation of thewater meter. The City then prepared a billfor the water plaintiff had received atthe house. It determined water service had been supplied, but not paid for, from September 30, 1959 toMay 26, 1969. Plaintiff refused to pay thisbillclaiming she received water atthe small house for only 

### 7 years, rather than the nearly 10 years for which she was billed. Plaintiff remained inthe house after the termination of itswater service. She testified that for a year and a half she hand carried water to the small house from the four-plex. Ultimately, plaintiff attached a hose to an outside spigot of the four-plex, and supplied water to the small house by means of thishose. She used the hose to provide water toher house atvarious times for several months, beginning in the summer 1970. InOctober 1970, the City discovered plaintiff was supplying water toher house through the hose. On October 16, the City water clerk sent plaintiff a notice by certified mail that the

use of the hose to supply water toher house was a violation of City ordinances and Public Service Commission regulations and waterservice to the four-plex would be terminated if the use of the hose was not discontinued by October 

### 26, 1970. Plaintiff acknowledged receipt of thisnotice. The City later learned plaintiff

was continuing touse the hose to supply water toher house, and

on October 30, 1970, water service to the four-plex was terminated by the City. Tenants living inthe four-plex moved out within a few days of the termination of itswater services. Plaintiff retained a series of lawyers during the following months, but was unable toget water service restored to the four-plex. In the spring 1971, plaintiff discontinued heat and electricityatthe four-plex; she testified that without rental income these utilitiesbecame too expensive tomaintain. After 1971, plaintiff made no request to the City torestore water service to the four-plex. She testified that by then, thewater pipes in the four-plex were damaged and without extensive repair could not carrywater if it was restored. Plaintiff brought this action on April 

### 28, 1971, seeking damages for lost rentals and various expenses she allegedly incurred as a consequence of the City's termination of water services to the fourplex.The issue on appeal 

### iswhether the evidence shows the City of Glendive, acting as a public utility, exceeded 

### its lawful authority interminating water services to plaintiff'

### s four-plex. Resolution of this question turns on the city's purpose in terminating the water services. Plaintiff contends the City turned off the water to the fourplex for the purpose of forcing her topay the disputed bill for unmetered water supplied toher smallhouse, and to induce her to installa meter there. While plaintiff testified she knew water service tothe fourplex had been terminated because of her use of thehose to supply -4-water to the smallhouse after the City had shut off the water to that structure, she also testified she was led tobelieve water service to the four-plex would be restored if she paid the disputed bill. This information allegedlywas related toher at various times by attorneys she retained inthe course of her efforts tohave this service restored. Plaintiff also testified the mayor told her directly that she would have topay the bill toget the water turned back on atthe four-plex. Further, that the citywater clerk told one of her attorneys, who inturn told plaintiff, that payment of the billwould result inrestoration of service to the four-plex. Plaintiff argues that if the City would have restored water service to the four-plex upon payment of the disputed bill forwater supplied toher small house, it follows the City shut. off water to the four-plex solely to force such payment. The City concedes it 

### iswithout authority to terminate water services toa structure for the purpose of forcing the resolution of a collateral dispute not affecting the structure. It contends that the evidence here shows plaintiff's payment of the disputed billwas not a condition precedent to restoration of the four-plex's water, but that the servicewas terminated because plaintiff violated certain rules and regulations of the Public Service Commission and Glendive cityordinances by providing water to her house by means of the hose attached to the four-plex. The mayor testified that shortly after service to the fourplex was terminated, he spoke to plaintiff and informed her that if she reapplied for service to the four-plex and removed the hose between it and her house, the City would restore service. The citywater clerk testified the mayor had not instructedhim to require plaintiff topay the disputed billas a prerequisiteto acceptance of any application plaintiff might make for restoration of service to the four-plex. The citypublic works director also testified stating that restoration of water service to the four-plex was conditioned only on

## lai in tiff's discontinuance of her use of the hose. The notice sent by the citywater clerk to plaintiff two weeks before termination of service to the four-plex state. such terminationwould result, if plaintiff continued to supply water to toher house by means of the hose connected/the four-plex. There isno mention in thisnotice of the disputedbill, and no indication that plaintiff's failure topay it would trigger the shutoff of water to the four-plex. The October 16 notice stated that plaintiff was violating regulations of theMontana Public Service Commission and a City Code by supplying water toher house with the hose from the four-plex. The relevant rules and regulations of the City of Glendive Water Company, approved by the Public Service Commission of Montana, admitted intoevidence and applicable atthe time pertinent provided: "Rule G-1. 

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# * Servicewillbe furnished to any consumer who fullyand truly sets forth allthe purposes forwhich water may be required and who agrees toand conforms with allrules and regulations governing the service

# ** *.I1 "Rule 

### G-5. No plumber or other person willbe allowed tomake connection with any conduit, pipe or other fixture connecting therewith or to connect pipes when they have been disconnected, or to turn water off or on, on any premises, without permission from the [water] company .I1"~ule G-6. Service pipes shallbe so arranged that the supply of each separatebuilding, house or premises may be controlledby a separate curb cock, placed within ornear the line of the streetcurb, under rules establishedby theWater Company or civil authorities, This curb cock and box must be kept in repair and easily accessibleby the owner of the premises." "Rule G-12. For violation of any of these rules, or fornonpayment of water rent, for either domestic, sprinklingor other purposes, the company has the right to turn off the water without furthernotice

# ** *.If "Rule G-13, The foregoing general rules shallbe effective for allwater utilities operating in Montana. 

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"In addition to the general flat rate and meter rate rules, a utility may adopt, subject to the approval of the Public Service Commission, other rules tobe designated as special rules, to fitlocal conditions. Incase of any apparent conflict in the rules, the general rules shallgovern." "Rule M-9. Inno case 

### willthe company furnish water from one meter totwo or more houses, whether the same are owned by one person ornot.11 Glendive City Ordinance Number 418, enacted in 1928, provides inpart:

IISec. 2. No plumber orother person 

### willbe allowed to make connections with any conduit, pipe, or other fixture connecting therewith, or connect pipes when they have been disconnected, or to turn water off or on, on any premises without permission of the water department.

I1Sec. 

### 3. Service pipes shallbe so arranged that the supply for each separate building or house may be controlledby a separate curb box placed atthe out side of the sidewalk.

# ** *.I1 Having heard the conflicting testimony as to the City's purpose interminating service to thefour-plex, the District Court found the city's actionwas not taken to force payment of the disputed bill. Rather, the actionwas taken to discourage plaintiff from continuing the practice of supplying water to thesmallhouse from the four-plex, a practice prohibited by the quoted rules and regulations and city ordinance. InCity of Missoula v. Rose, 164Mont. 

### 90, 92, 519 

### P.2d 146 (1974), this Court stated: "We have consistently held that this Court cannot substitute

### itsweighing of the evidence for that of the trialcourt. When there 

### is a conflict in the evidence, the findings of the trialcourt are presumed tobe correct if supported by the evidence most favorable to the prevailing party. 

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# ** The fact that therewas a conflict in the testimony does notjustify a reversal where there 

### is sufficient evidence to support the trial court's findings of fact." There was sufficient evidence upon which the District Court could base 

### its finding that termination of water services to plaintiff's four-plex was not for the purpose of forcing the payment of the billforwater previously supplied to the smallhouse. We note plaintiff challenged neither the rules and regulations nor their effect on her use of a hose to supply water metered atone residence, to another unmetered residence. While

a utilitymay enforce reasonable regulations by terminating service to a consumer who violates such regulations, termination should not be seen as a necessarily proper response inevery case. When there are less drasticremedies available, such as injunctive or other relief, termination 

### willnotbe favored. For the reasons set forthherein, thejudgment in the instant

case 

### is affirmed.

### We Concur:



### Justices.