Wheeling Sunday register. [volume] (Wheeling, W. Va.) 1882-1934, 1886-07-04

"a sa1Izl4 terday afternoon, was ohe Vi
neculiar interest to the citizens Of Wheel
inc. The title of the case was G. Mendel
& Co. vs.. The City of Wheeling, it being
an appeal from the decision of the Circuit
Court of Ohio County on the suit for
SO 900 damages brought by the firm
against the corporation, the ground upon
which the suit was based being the alleged
failure of the city to supply an adequate
Quantity of water for the proper protection
of the property of the firm from fire. Judge
Johnson delivered the opinion of the Court,
in which the judgment of the lower court
was affirmed, Caldwell 4 Caldwell APP
peared for the city, and White and Gil
christ for G.. Mendel & Co. Following is
the syllabus:
SYLLABUS. /. The power to organize
and regulate water works IN n city beng
in its nature legislative or judicial, a FAIL
ure of the corporation authorities to eNer-
else the power does not render the city
liable for damages caused by such failure.
> In the absence of charter, accepted
by the city, compelling it TO erect and reg
ulate water works, it is discretionary with
the municipal corporation whether 1t Will
or not erect or cause to be erected water
works; or after such works have been
erected. whether it will continue or aban-
don such works; or whether it will lay
water mines i'm certain streets; and after
having laid such pipes, whether it will not
abandon or remove them, and leave such
streets without pipes, OF suffer them to Inc
filed with earth or other substances; and
such power being governmental and dlscre-
tiOnary the city is not liable for loss by
tire caused by the negligence OF ITS ser
wants and agents, in suffering any OF ITS
water pipes to become filled with earth or
gravel, so that they will convey no water.
8. When the city owns its water works,
and charges those who are supplied with
water certain annual water rent, for
such supply, there is still by this fact no
duty imposed ON the city from which a
liability can be raised against the city
for damages for loss Of property by fire,
caused by the negligence Of the agents and
servants of the city, in suffering the water
pines to become useless, so they would not
supply water for the eXtinguishment OF
fire.
4. From such facts no contract could be
implied to keep 4 supply of water.
). The city which owns its water works
and charges the consumers of the water
an annual water rent is no more liable
to damages for loss by fire, than city that
does not own its water works, but keeps q
paid fire department, supported by general
taxation. The city which owns its water
works and charges a water rent does
not in any proper sense, receive profit
from such works, but it is q species OF
taxation for the legitimate purposes OF the
city government.
s. Mendel 4 Co. lost factory by fire IN
the city of Wheeling. The city owned and
operated its water works and received
water rents from those supplied with
water. Mendel & Co. were supplied with
water and paid the charge. The property
was lost because the supply pipe, through
the negligence of the agents Of the city, was
suffered to be filed with mud so it would
supply no water Held, the city is not
liable for the loss.
In the latter part of his opinion Judge
johnson says:
''From what we have seen in our eXami-
nation of the authorities, there could be no
implied contract, from the facts set forth
in the declaration. II is equally clear
both from reason and the authorities, that
the officers of the city had no power to
bind the city in any contract that would
compel the city TO pay for property de
stroyed by fire, from the negligence of the
city officers. In any view that can be taken
of the case, the declaration does not state
a cause of action. The judgment of the
Circuit Court of Ohio county is affirmed. "