Shaw v. San Diego Water Co.

HAYNES, C. This suit was brought by the plaintiff to enjoin the water company, a corporation engaged in supplying the city of San Diego and its inhabitants with water for domestic and other purposes, from shutting off and refusing to supply the plaintiff with water. Plaintiff had judgment, and the defendant appeals therefrom. The cause was tried upon an agreed statement of facts, which is set out in a bill of exceptions. Plaintiff owns two city lots, having a frontage of 100 feet, with a dwelling thereon, in which he and his family, consisting of eight persons, reside. The house contains one bathtub and two water-closets. Ordinance No. 295 of said city, fixing the water rates for the year beginning July 1, 1895, among other things provides the rates to be charged for the following uses: Section 1 (subdivision 1) : “Bathtubs in private residences, 25 cents each per month.” (4) “Water-closets in private residences, 25 cents per month.” (17) “Dwellings, tenement houses, flats and other apartments, the same being occupied by not more than three persons, $1.00 [810]per month, and for each additional person 15 cents per month.” (25) “Irrigation of lawns, etc., one cent for every front foot per month.” These provisions covered plaintiff’s uses, and fixed for him a monthly rate of $3.65, known as the “family rate.” Bates for hotels, lodging-houses, restaurants, etc., were fixed in a similar manner. Section 2 of said ordinance provides that “any water-rate payer shall have the right to demand a meter and to pay a meter rate upon tendering the person, company or corporation furnishing the water the sum of $7 for placing and connecting the meter with the supply pipe of such water-rate payer.” The ordinance in force the preceding year contained the provision above quoted, and also permitted the water company to put in a meter “otherwise than at the consumer’s request”; and while that ordinance was in force the water company put in and connected a meter with the plaintiff’s supply pipe, but not at his request. During the month of July, 1895 (the first month the new ordinance was in force), plaintiff used, as shown by the said meter, 45,532 gallons of water, which quantity, at meter rates, amounted to $11.10; and the defendant demanded of the plaintiff, for the water so used during said month, $10.60. The plaintiff refused to pay said sum, and tendered to defendant the amount fixed by the family rate, which sum defendant refused to accept, and threatened to cut off and discontinue plaintiff’s supply of water, and this suit is prosecuted to enjoin the defendant from so doing.

The only cases in which the ordinance provides for compensation according to the quantity used, thus expressly or impliedly referring to the use of meters, are the following: Water furnished to the city for flushing sewers and sprinkling streets, water for irrigating two or more acres in one tract, water furnished ships, water used by any rate payer who shall demand a meter and pay $7 for placing it, and the cases mentioned in subdivision 31 of section 1, which is as follows: “Where water is furnished for steam engines, gas machines or works, wash-houses, Chinese or otherwise, street and sidewalk sprinkling, or for any other purpose whatever, and no compensation is herein fixed therefor, and satisfactory rates cannot be agreed upon, the meter rates shall govern. The person, company or corporation furnishing water shall be entitled to collect a minimum meter rate of $1.75 per month while water is .being furnished through such meter. ’ ’