Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1886-07-05
IMPORTANT.
Corporation Not Bound to Supply
Water.
4 TgMONG the half dozen or more
8 decisions rendered by the Su-
4 preme Court of Appeals yes
q terday afternoon, was one OF

SWFN NMONG the hall dozen or hOe
W. decisions rendered by the Su-
~ preme Court of Appeals yes
kz1f2A terday afternoon, was Oh
pecuIiar interest to the citizens OF wheel
ing. The title of the case was G. Mendel
& Co. VS.. The City of Wheeling, it being
an appeal from the decision of the Clreul'
Court of Ohio County on the suit Tor
$40. 600 damages brought by the nrm
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 protectlOh
of the property Ofthe firm from fire. Judge
Johnson delivered the opinion OF me our
in which the Judgment of the lower our
was affirmed, Caldwell & Caldwell ap-
peared for the city, and White and Gill
christ for G. Mendel & Co. Following Is
the syllabus:
SYLLABUS. /. The power to organize
and regulate water works in a city being
in its nature legislative or judicial, a TALL
ure of the corporation authorities to exer-
else the power does not render the Guy
liable for damages caused by such failure:
y In the absence of 4 charter, accepted
bv the city, compelling it to erect n 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 pipes in certain streets; and after
having laid such pipes, whether 1t VIII not
abandon or remove them, and leave such
streets without pipes, or suffer them TO DE
filled with earth or other substances; II
such power being governmental and dlScre-
tiOnary, the city is not liable Tor loss by
fire caused by the negligence OF It's ser
wants and agents, in suffering any of its
wafer pines to become filled with earth or
gravel, so that they will convey no water.
3. When the city owns its water works,
and charges those who are supplied with
water Il certain annual water rent, Tor
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
pipeS to become useless, so they would not
supply water for the eXtinguishment Of
fire. "
1. From such facts no contract could be
implied to keep n supply of water.
NJ. -. ,,lt.h, A,,.nS Ifs Nyntnr works
and charges the consumers of, the water
an annual water rent Is no more liable
TO damages for loss by fire, than a city that
does not own its water works, but keeps a
paid fire department, supported by general
taxation. The city which owns its water
works and charges Il water rent" does
not in any proper sense, receive n profit
from such works, but it is a species of
taxation for the legitimate purposes of the
city government.
6. Mcndcl 4 Co. lost Il factory by fire in
the city of Wheeling. The city owned and
opcrated its water works and received
water rents' from those supplied with
water. Mendcl & 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 filled 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 cxami-
nation of the authorities, there could be no
implied contract, from the facts set forth
in the declaration. 1t 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"