Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1906-03-18
EACH SIDE GETS A VERDICT
City Wins Hydrant Rental Suit and Loses
Counter Claim.
WATER COMPANY WILL FILE APPEAL
Corporation sues for one Hundred
Thousand Dollars and City De-
mands Eighty Thousand
60 onset II.

Judge Munger OF the federal court d.
rected Saturday the jury in the case Of
the Omaha water company against the
City OF Omaha, for approximately 100000
hydrant rentals for the last half Of the
year 1905 and FIRST half OF the year 1905 to
return a verdict for the city in both Of
the combined cases, but i'm favor Of the
water company on the counter claim Of the
city.
The decision states in effect that the
water company cannot recover on its con-
tract, embodied in the ordinance OF 1888,
with the city, because or insufficient fire
pressure in the hydrants, but the water
company is not barred from collecting for
the actual amount OF water used when
that can be determined.
The counter claim Of the city was for
approximately $4,000 expended in the pur-
chase Of steam FIRE engines. made neces-
sary by the alleged inadequate fire hydrant
pressure, which submitted offset
20 the claim OF the water company for
hydrant rentals. 1t was In this counter
claim that Judge Munger directed the jury
10 return a verdict against the city.
The water company gave notice that it
would appeal the case to the United States
circuit court of appeals.
Details of the Trial.
The arguments in the case were concluded
Friday evening, being almast wholly upon
law points and before the court, the jury
having been excused. When court con-
vened Saturday morning the attorneys for
tho water company submitted a motion
that the court direct the jury to return a
verdict for the plaintiffs The motion
was Overruled, to which exceptions were
taken. The attorneys for the city filed a
like motion in both cases, both Of which
were overruled.
Judge Munger said in part, after a care
full review Of the entire case:
I have reached the conclusion after re-
ton OF material fact IL could be determined
by the jury, but IL becomes question of
law. Lhere are Two cases, one dor rentals
other for hydrant rentals from January l,
1905 TO July /, 1906. An obligation is implied
in the contract and either party is re-
required to comply with its terms. Both
parties claim they have complied with all
these terms, The question then arises up
to provide ample fire protection under the
provisions of the ordinance, which also
pfoVlued LOT increased water Iaclllties,
both for domestic use and fire protection
corresponding with the growth of the city
and the corresponding increase of its pump
ing machinery and other devices to comply
with these growth conditions.
Essential Parts of Contracts.
These terms were an essential part Of
the contract The water plant was con-
structed for the city as 1t then was, and
/ am clearly of the opinion that taking
the contract as a whole that II has been
carried out though complaint was made in
1895 and 1896 that the terms of the contract
were not being carried out, but this com
plant was decided against the city. The
city again complained in July, 1904 and this
is the suit now pending.
The question Of the purity of the water
supply was then gone into at length by
the court. and it was shown that even these
conditions were complied with.
AT all events" he said. mo complaint
had been made in all these years that the
water furnished was not of SUFFICIENT purity
and until the bringing of this suit"
In compliance with the request of the
plaintiffs, the court further instructed the
Jury that It was shown by Abbott or
municipal corporation" that this character
OF defense was frequently resorted to with
special view to depreciate the value of a
water plant when the question of it's pur.
chase by a municipality was under con.
temptation. The court added
AZ 70 Additional Mains.
The next question was that the contrac
provided that the water company shoult
put In additional mains from time to time
"a needed, and additional hydrants. IN,
water company agreed 10 do this but the
defendants claim II has not done so. Tn,
water company did not have the legal righ
10 refuse to put in these hydrants ordered
city was in debt, and without money in In In
treasury to pay for them. This debt wa
contracted at the inception of the ordinance
OF 1883, and the contract explicitly directed
that the water company should nut h
MIGRANTS then needed, and all which woult
be needed in the future.
rTsk.a had L..
for not doing what IL was directed to i,
by the city. For that reason 1 do no
think that the plaintiff can recover on IL
contract.
r.. 8. Hall, attorney for the water com
pany. here interrupted the court with til
hurried observation that THE plaintiffs
in view OF what you are about to decide
wish to amend their pleading according
20 the proofs submitted"
John l.. Webster, attorney for the city
was on his feet in an instant and re
marked with considerable emphasis: mo
after we have waived our rights 10 thi
jury"
Judge Munger turned to Mr. Hail am
said:
1.-THE court is not disposed to grant YOU
request at this time-the plaintiff eanno
recover on its contract"
Judge Munger further said. in effect, tina
the direction or the verdict did not ba
the plaintiffs for suing for the aeula
value OF the water used by the city /
the hydrants, but that it could not rs
cover on its contract.
The jury was then discharged by IL
court. and with its discharge the ad
journed November term OF the Unite
States circuit and district courts came
an end.
JOINT STATEHOOD UNPOPULAR