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

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.

[1] 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

[2] On this appeal the appellant concedes that the rule of law as announced in the early decisions of the supreme court of this state supports the judgment appealed from, but insists that we should depart from these decisions and establish a rule for the benefit of the householder giving them a right of action against public utilities furnishing water in case of the destruction of the customer’s property by fire which the supply of water has been inadequate to prevent. The answer to the appellant’s suggestion is that changes in the substantive law must be made by the legislative bodies rather than by the courts.

The respondent relies upon Niehaus Bros. Co. v. Contra Costa Water Co., 159 Cal. 305 , 316 [ 36 L. R. A. (N. S.) 1045 , 113 Pac. 375 , 380], where the rule applicable here is announced as follows: “No liability such as plaintiff claims was ever contemplated where the only relation shown is such as proceeds from the fact that the water company has undertaken to furnish the inhabitants of a municipality with water, has connected its mains with-the premises of a consumer, and is charging ordinance rates for the water supplied or to be supplied. ’ ’ In that case the facts were almost identical with the ease on this appeal except that the property owner in the Niehaus case had installed seven fire hydrants upon its premises for the special purpose of protection against fire and had for a number of years paid the public utility a special charge for the water to be furnished in case of fire. Some time prior to the destruction of the premises the plan of payment had been changed, but the property owner continued to pay for the fire hydrants at a rate fixed by a municipal ordinance. Notwithstanding this, the supreme court held that this service, termed “stand-by service,” a charge for the supply of water to the fire hy

It is true, as is alleged by the appellant, that the provisions of section 549 of the Civil Code were not considered in the Niehaus case, but they were expressly considered in the ease of San Leandro v. Railroad Com., 183 Cal. 229 , 234 [ 191 Pac. 1 , 3], where the court said: “Aside from the fact that water need no longer be furnished ‘free of charge,’ for fire protection purposes, this section remains in force.” The provisions of that section were analyzed in the San Leandro

In accord with the rule of the foregoing eases the judgment is affirmed.

Langdon, P. J., and Sturtevant, J., concurred.