Gilbert v. City of Martinez

DRAPER, J.

Plaintiff owned land outside defendant city which he planned to subdivide. He sought water service from the city, built a pipeline extending from the city water system to his subdivision, and paid $1,400 to the city. After the number of houses in the subdivision exceeded seven, the city billed him for additional water connections at the rate of $200 per house in excess of seven. He paid under protest, and filed this action for recovery of the payments in excess of $1,400. The trial court found in defendant’s favor, and entered judgment accordingly. Plaintiff appeals.

Appellant contends that he is entitled, as a third party beneficiary, to the benefits of a contract executed by respondent city in 1949. He argues that under this contract he would be required to pay only $1,400 as the total charge for connection of his subdivision, and all houses built or to be built in it, to the city-owned system. We have studied this contract and have concluded that under its terms ap

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pellant would be required to make the payments sought by the city. Thus, it is unnecessary to determine whether he is a third party beneficiary. It is, however, necessary to review the 1949 agreement in some detail to show the basis of our view of its proper construction.

In 1948, some 45 owners of land outside Martinez desired water service from the city. Pursuant to ordinance adopted by the council in September, 1948, they entered into a contract with the city dated January 26, 1949. In that agreement, the individuals are referred to as “second parties.” They paid the city nearly $50,000 to cover cost of installation of an extension of the city water system to serve them, and, in addition, agreed to pay charges ranging from $200 to $1,400, depending upon the pipe size at the meter, for connections from this extended water main to their individual properties. This agreement contemplated later connections to the new main by others than second parties, and provided that such later consumers should pay at the same rate for connections to the system. To repay the sums advanced by second parties, it was provided that the city should set aside all payments for connections to the system and, in addition, a portion of the charges for water service, whether paid by second parties or by later users of the system. These sums were to be paid to second parties and, when they had been repaid in full for their advances to construct the system, were to be distributed to those, including second parties, who had paid connection fees.