Lukrawka v. Spring Valley Water Co.

Petitioners brought this proceeding in maivdamus in the superior court of the city and county of San Francisco to compel the respondent to extend its water mains and supply petitioners with water. The superior court sus

The following are the principal facts alleged and relied on in the petition: The petitioners are all residents of and property owners in that portion of the city and county of San Francisco bounded on the north by Geary Street, on the south by Fulton Street, on the east by Fifteenth Avenue, and on the west by Nineteenth Avenue. Within this area is embraced a district of approximately eight blocks square intersected by Sixteenth, Seventeenth, and Eighteenth Avenues running northerly and southerly, and by Anza, Balboa, and Cabrillo streets running easterly and westerly therethrough. Within this described district there are more than one hundred buildings occupied by some one hundred families, the value of said buildings aggregating an amount in excess of five hundred thousand dollars. The respondent is a corporation duly organized and existing under the laws of the state of California and the grantee and successor of the rights, franchises, duties, and responsibilities of the Spring Valley Water Works, a corporation organized about June 19, 1858, under the act of April, 1858, for the purpose of supplying the city and county of San Francisco and the inhabitants thereof with a sufficient supply of water for domestic use and other purposes. The respondent has been for a long time and is now engaged in the business of furnishing and distributing water to the greater portion of the inhabitants of the said city and county through a system of mains and lateral water-pipes which are laid in, through and along various streets, avenues, alleys, and highways of said municipality; that a large main of the- respondent more than sixteen inches in diameter extends along Geary Street on the northerly line of the district heretofore described within which petitioners reside and on the avenues and streets of which they own property, and a smaller main extends along Fulton Street on the southerly line of said district; that some extensions of smaller mains or laterals have been made by respondent northerly from its main on Fulton Street along Sixteenth, Eighteenth, and Nineteenth avenues in said district for a block, and southerly from the main on Geary Street about

The attack of respondent upon this petition by demurrer was based upon a large number of grounds but the principal one presented and relied on is that the facts alleged in the petition do not sustain any right in petitioners to be granted the relief they seek.

The predecessor and grantor of respondent, the Spring Valley Water Works, was organized under the act of 1858 which provided that “All corporations formed under the provisions of this act, or claiming any of the privileges of the same, shall furnish pure, fresh water to the inhabitants of said city and county, or city, or town, for family uses, so long as

The contention of the petitioners is, and the petition was drafted upon that theory, that under the terms of the franchise by which its right to operate in the city and county of San Francisco was granted to and accepted by the respondent, as well as under the statute and constitutional provision, the duty was assumed by the company and the implied obligation was cast upon it of taking all reasonable measures to supply the entire city and its inhabitants with water and in the discharge of that obligation to lay its pipes in the streets

The claim of respondent is that neither its franchise nor the provisions relied on by petitioner requires it to make any extensions of its system by the addition of water mains to districts within the city other than it may deem proper to do; that the only legal duty which it owes to such inhabitants is that when it had laid its mains or laterals along the streets of the city it must allow service connections to be made therewith for the benefit of property owners along the line of said mains and laterals.

Having stated the contentions of the respective parties, we proceed to examine their merits.

The predecessor of respondent and respondent itself was not organized and is not engaged in a private enterprise, the conduct of which is within its own control. It was organized for and is engaged in a public enterprise and its rights, duties, and responsibilities are to be determined from a consideration of the provisions of the franchise which it acquired under the act of 1858 and the obligations which it assumed when it accepted it. By incorporating under that act it unquestionably assumed the public duty of supplying the city and county of San Francisco and its inhabitants with water, which was the specific purpose for which the franchise was extended to it. Under the franchise the corporation was invested with a right of eminent domain to effect the public duty which it had undertaken and in the municipality where it undertook to carry out its assumption of this duty, and for the purpose of effectively doing so it was granted an irrevocable easement in the streets of the entire city for the purpose of laying its pipes therein and discharging the duty it had assumed. The act of 1858 in express terms confers on corporations accepting the franchise extended under it, the privilege of using the streets of the municipality in which it has undertaken to operate for laying its pipes and conduits. The respondent could acquire no right to engage in the business of supplying water to the city and county of San Francisco, with an easement over all the streets of the municipality, unless under a franchise granted by the state for that purpose and with such a right. It was for the benefit of the public that the franchise was extended; to secure to the municipality of the city and county of San Francisco and its inhabitants "an adequate supply of water as the reasonable

We are not cited to any authority by petitioners where the precise question now under consideration was involved—the extension of a water system into new territory in a city—and to none by respondent where it is held that a corporation operating under the terms of a franchise such as is involved here is not required to do so. Our own investigation of the subject has disclosed some authorities which support the right to have such extensions made within reasonable limits. In fact, in one of them (decided after this appeal was determined by the district court of appeal) there was under consideration the rights and obligations of a public service corporation organized under the constitutional provision—section 19, article XI, as amended in 1885—which we have quoted above and which, as far as the franchise thereby granted is concerned, is in no respect different from the franchise acquired by the respondent under the ait of 1858 and the benefit of which constitutional amendment is available to respondent. That case is Russell v. Sebastian—decided by the supreme court of the United States ( 233 U. S. 195 , [Ann. Cas. 1914C, 1282, 58 L. Ed. 912 , 34 Sup. Ct. Rep. 517 ]). It involved the right of gas and water companies to excavate streets in municipalities for their mains under the constitutional amendment of 1885 above referred to. The Economic Gas Company ■had organized in 1909 for the purpose of manufacturing and delivering gas in the city of Los Angeles. It had established its works for that purpose and prior to October 10, 1911, had extended its distributing system along the streets of that city into a portion of its territory. On October 10, 1911, said section 19 of artiae XI of the constitution of this state was further amended to provide, among other things, that “persons or corporations may establish and operate works for supplying the inhabitants with such service (gas, water, etc.) upon such conditions and under such regulations as the municipality may prescribe under its organic law. ...” Sub

The court after discussing the policy of the state in making the constitutional offer of such a franchise declared: “That there was no ambiguity in the scope of the (constitutional) offer. It was not simply a privilege to maintain pipes actually laid, but to lay pipes as far as they might be required in order to effect an adequate distribution. . . . The breadth of the offer was commensurate with the requirements of the undertaking which was invoked. The service to which the provision refers was a community service. It was the supplying of a municipality—which had no municipal works—with water or light. ... In view of the nature of the undertaking in contemplation, and of the terms of the offer, we find no ground for the conclusion that each act of laying pipe was to constitute an acceptance pro tanto. We think that the offer was intended to be accepted in its entirety a,s made, and that acceptance lay in conduct committing the person accepting to the described service. . . . This construction of the constitutional provision is the only one that is compatible with the existence of the duty which it was intended, as it seems to us, that the recipient of the state’s grant should assume. The service, as has been said, was a community service. Incident to the undertaking in response to the state’s offer was the Obligation to provide facilities that were reasonably adequate. . . . It would not be said that either a water company or a gas company, establishing its service under the constitutional grant, could stop its mains at its pleasure and withhold its supply by refusing to extend its distributing conduits so as to meet the reasonable requirements of the community. But this duty and the right to serve, embracing the right under the granted privilege to install the means of service, were correlative. ’ ’

In this connection the said supreme court quoted with approval from. People ex rel. Woodhaven Gas Co. v. Deehan,

In a comparatively recent work—Wyman on Public Service Corporations—the author says (vol. 1, sec. 797) : “In most of the public employments of the modern type what is undertaken is noj; merely the devoting of particular equipment to public use but rather the rendering of a certain service to the community with which it professes to deal. . . . All this is particularly true of the municipal services—such as waterworks, gas plants, electric plants, and telephone systems. . . . Such companies are held to undertake the service of their communities; and they must, to speak in general, be prepared to extend this system throughout their district to meet the reasonable demands of the growing community. If this involves the acquisition of new sources of supply, or a laying of pipes in new streets, or extension of wires to other streets or the construction of new exchanges, all these new

In the case of Bothwell v. Consumers’ Co., 13 Idaho, 568 , [ 24 L. R A. (N. S.) 485 , 92 Pac. 533 ], the action was brought to compel the water company to attach its mains and connect with the water-pipe of the plaintiff on the line of his property. The court reversing a judgment entered on an order sustaining a demurrer to the complaint, in the course of its opinion said as to the extent of the implied obligation of a water company under a franchise similar in terms to that of respondent here: “The franchise for laying pipes in the streets and alleys, and maintaining and operating a water system, is granted by the municipality to the water company. The property owner has no right or franchise to dig in the

In addition to these cases which deal with or discuss the duty of a public service corporation to reasonably extend its service to meet the necessary wants of a community which under its franchise it has undertaken generally to serve, we are cited by counsel for petitioners to a number of eases, all of which involved directly the refusal of a water company to make service connections for the benefit of property owners whose property abutted upon streets through which the supply mains of the company were already laid and which sustain the right to have the service connections made. Counsel for respondent contends that these cases are distinguishable in principle from the case at bar. But the only difference we perceive is that the petitioners here do not reside directly on the streets through which the respondent has laid its mains. It is true that in none of the cases cited was there the question involved, nor do they declare anything as to the duty of a water company organized and chartered for the purpose of supplying all the inhabitants of a community with water to reasonably extend its mains so that all residing therein may be served. But in our judgment there is no difference in the principle applied in the cited eases and that which governs in the case at bar, which is, that where a public service water company has obligated itself under its franchise to supply the inhabitants of a community with water and has the water with which to do so, it is under legal compulsion to discharge its assumed obligations on a reasonable demand. In the cited cases the water company had actually extended its. mains along the streets of a city to a point where the water supply was accessible to the property owners fronting on the mains and in the discharge of its franchise obligation was compelled

We are of the opinion therefore for the reasons given and under the authorities we have referred to that when the respondent' accepted the franchise offered by the state and undertook to supply the municipality of San Francisco and its inhabitants with water, it assumed a public duty to be discharged for the public benefit: a community service commensurate with the offer of the franchise which involved the duty of providing a service system which would be reasonably adequate to meet the wants of the municipality not only at the time it began its service but likewise to keep pace with the growth of the municipality, and to gradually extend its system as the reasonable wants of the growing community might require, and as it appears from the petition in this case that respondent is in a position to discharge this duty toward petitioners by a reasonable extension of its mains it should have done so on their demand and having refused may be compelled to do it.

In reaching this conclusion it is of course to be borne1 in mind that the right of an inhabitant of the municipality or the inhabitants of a particular portion of it to compel the service to them by the water company through the extension of its system, is not an absolute and unqualified right. The fact that the water company has undertaken to serve the entire municipality and that it would be of advantage to an inhabitant thereof, or a number of them, to have the water system extended to supply them would not of itself be sufficient to require or compel the company to make the extension. The duty which the water company has undertaken is of a public nature and to meet a public necessity for the supplying of water to the community. The obligation of the company is not to supply each or any number of inhabitants of the municipality on demand as an absolute right on their part but it has only assumed and become charged with the public duty

The special point is made by respondent, for the first time in this case in a supplemental brief filed by it on the hearing in this court, that the petitioners, as private individuals, may not maintain this action in mandamus; that the primary right to compel respondent to extend its mains (if it exists anywhere, which respondent does not admit), rests with either the board of supervisors of the city and county of San Francisco or with the state railroad commission, and that one or the other of these bodies can alone invoke by mandamus the aid of this court to compel the extension of existing mains in compliance with the order of either requiring respondent to do so. Hence, respondent asserts that the demurrer was properly sustained by the superior court because the amended petition itself does not show a cause of action which the petitioners could assert. Counsel do not point out in which of the public bodies referred to the alleged primary or exclusive right to compel the extension of its mains is vested. It asserts after simply quoting provisions of the charter of the city and county of San Francisco, general provisions of the constitution and the special constitutional provision respecting the powers of the state railroad commission, that the right

We perceive nothing in the charter provisions nor the constitutional provision respecting the power of the board of supervisors or the state railroad commission which confers upon either of these public bodies primary and exclusive right to initiate proceedings compelling respondent to extend its water system to meet the present wants of particular inhabitants of the municipality, or anything which precludes the inhabitants of a city, or any portion thereof, which a public service corporation exercising such a franchise has obligated itself to serve with water, from applying directly to the courts to enforce the obligation to them which the corporation has undertaken to discharge. It may be assumed in the same general way that respondent asserts it (though we decline to express any opinion on the subject) that one or the other of the public bodies referred to also has the power to compel the respondent as a public service corporation to discharge the public duty assumed under its franchise to meet the public wants and necessities as they arise in the municipality. But the legislation under which these bodies are created does not pretend to interfere with the personal right of the inhabitant of a city to invoke the aid of the court to compel the respondent to enforce toward him the obligation which it has assumed for his personal benefit. It is not pretended that mandamus as invoked here is not the proper remedy if the petitioners have a remedy. The only insistence is that it is not available to them because, as asserted, the relief which they ask can only be afforded them through the medium of the public bodies referred to. But as no primary or exclusive control of this subject is vested in these bodies, the right of the petitioners to compel the discharge of its duty to them by respondent cannot be doubted. The franchise of 1858 accepted by respondent constituted, as we have said, a contract 'between it and the state under which the respondent undertook a public use of which the inhabitants of the city of San Francisco are the beneficiaries. The right of such inhabitants as beneficiaries of such public use was created under the franchise so accepted and the duty was then assumed by respondent of furnishing and supplying water for their personal use as their reasonable demands for it might arise.

The judgment appealed from is reversed.

Melvin, J., Shaw, J., Sloss, J., Henshaw, J., and Angellotti, C. J., concurred.