Luning Mineral Products Co. v. East Bay Water Co.

NOURSE, J.

The plaintiff Luning Mineral Products Company joined with the London Assurance Corporation in an action against the East Bay Water Company to recover damages for the loss of the plant of the first-named plaintiff, which was destroyed by fire. A demurrer to the complaint was sustained; the plaintiff Luning Mineral Products Company filed an amended complaint and as to that plaintiff the action is still pending in the trial court. The plaintiff London Assurance Corporation declined to amend and has appealed from the judgment which followed its default.

The pertinent allegations of the complaint are that when the plant of plaintiff Luning Mineral Products Company was erected in the city of Richmond, California, a fire hydrant was installed adjacent thereto upon which the Water Company collected a water rental,[1] or a rate for “stand-by service,” under the ordinances of the city of Richmond and the decisions of the state Railroad Commission, and that said plaintiff paid a proportionate share of said rental as a taxpayer of said city of Richmond; that on August 15, 1922, the entire plant of said plaintiff was destroyed by fire, owing to the lack of water in the mains of said defendant and the failure of said defendant to furnish water at said fire hydrant. It was also alleged that such failure was due to the fact that the Water Company had negligently connected said hydrant to its reservoir with pipes too small to supply

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an adequate amount of water at said hydrant, and that it had also negligently permitted air pockets to collect in said pipes, which, in turn, caused a failure of the water system to furnish water at said hydrant to enable the fire department to put out the fire. The further allegation is made that by virtue of section 5491 of the Civil Code an express contract existed between said plaintiff and the Water Company whereby the company was obligated to furnish to said plaintiff water to the extent of the defendant’s means for the protection of said plaintiff against fire, and that said plaintiff erected its plant in reliance upon said contract.