SCHULTZ v. TOWN OF LAKEPORT (1935)

The plaintiff in this action had judgment against the defendants for the sum of $450 on account of damages alleged to have been suffered by him by reason of the defendants having shut off and deprived him of a water supply during the months of August and September, and a part of October, in the year 1932. From this judgment, the defendants appeal.

The damages claimed by the plaintiff are based upon being deprived of the use of water at his residence during the period of time mentioned, and also in being deprived of the use of water for irrigating a garden upon there was standing and growing an alleged valuable crop of vegetables, berries, and other agricultural products.

The town of Lakeport is a municipal corporation of the sixth class, and owns its own water system. The plaintiff in the action, it appears, began taking water from the town of Lakeport in April, 1927, and continued the use thereof until August 2, 1932. At that date and shortly prior thereto the town of Lakeport claimed that there was due from the plaintiff for the use of water during said time, the sum of $208.15, of which $134.63 was claimed as being due on account of water furnished to the residence of the plaintiff, and also for the plaintiff's use in irrigating the garden just referred to, upon which the plaintiff had paid nothing.

A short time prior to August 2, 1932, it appears that an examination was made of the books of the town, in which were kept, or purported to be kept, the accounts of water users, and it was discovered that about 65 per cent. of the water users of the town were not paying their bills. It was also ascertained in this manner that the plaintiff had been using water for 51/212 years without making any payment therefor. Thereupon, the plaintiff was called before the council, and demand was made of him that he pay the amount so alleged to be due in twelve different installments. The record shows that the plaintiff disputed the bill, and also claimed that he was unable to pay the amount. At this time the plaintiff offered to pay the current rates, both at his residence and for his store. The defendants, however, refused to accept payment of current rates, but did offer to accept the payment tendered by the plaintiff upon the old account. It likewise appears that the plaintiff made a tender of the amounts which would be due for May, June, and July of 1932. This the council refused to accept unless it be credited on his old account. Suit was begun in the justice's court against the plaintiff by the town of Lakeport, and on October 5, 1932, the court decided in favor of the town of Lakeport against the defendant, and gave judgment in favor of the town of Lakeport for the sum of $72.69. Of this amount $36.69 was found to be due on account of water used at the plaintiff's residence and for irrigating his garden, $36 being for water used at the store belonging to the plaintiff.

The record also shows that about the time when the water was turned off the plaintiff claimed that there was due on account of water used at his residence the sum of only $36, and at the same time tendered to the town of Lakeport the sum of $36. This, however, the city council of the town of Lakeport refused to accept.

After the judgment was entered, as above stated, the plaintiff paid to the town of Lakeport $36.69 on account of said judgment, and $1 for turning on the water, and on the 18th day of October, 1932, the town of Lakeport resumed furnishing water to the plaintiff.

It appears from the record that the plaintiff was purchasing the premises, upon which water was being used, upon a contract, and was under the impression that the owner of the premises was paying the water bills.

The installments in which the defendants demanded that the back bill be paid amounted to a sum slightly in excess of $21. Upon the trial of the action just referred to, the court held that the statute of limitations had run against the bills claimed by the town of Lakeport, save and except for the two years just preceding the beginning of the action, as the record showed that the town of Lakeport had kept no book accounts of the water used by different consumers, and the amounts due therefor. The judgment of the court shows that the tender made by the plaintiff lacked only 69 cents of being the amount actually legally collectible by the town of Lakeport for the use of water by the plaintiff in his residence and in the irrigation of his garden.

The principal contention made by the appellants here is to the effect that if the plaintiff had permitted the amount of his tender to be applied upon the old account, the damages suffered by him might have been avoided; that the plaintiff, in disputing the bill, should have paid the sum demanded by the defendants, and brought an action to enjoin the defendants from shutting off his water supply until the disputed bill had been adjusted. While a number of authorities support the contention of the appellants, we have found no case, nor have we been cited to any case, where such a proceeding has been sustained, or where a city or water company has been upheld in an attempt to collect accounts for the use of water, against which the statute of limitations has run.

If the contention of the appellants were to be upheld, it would give power to enable the appellants to collect bills by threat of turning off the water supply, which they could not collect by an action at law. In other words, it would enable the appellants to avoid the statute of limitations. This, of course, appears to be the plain purpose of the demand of the appellants that the money tendered by the appellants for current rates should not be applied to payment of water used during the current periods, but should be applied upon the oldest periods in the account. In this manner collection would be made of all outlawed items.

Three questions and answers in the transcript which appear in the testimony of one of the councilmen illustrates the situation, to wit:

“Q. There was a dispute then, between Mr. Schultz and the City Council of the amount due, is that correct? A. Yes.

“Q. And the City Council decided to turn off the water because Mr. Schultz would not agree to the correctness of the statement rendered by the City. Is that correct? A. Yes.

“Q. Was there any reason, other than to force Mr. Schultz to pay the amount claimed by the City to be due, irrespective of the amount, for turning off the water? A. No.”

Likewise, as to the offer of the $36:

“Q. He agreed to pay $36.00 before the City Council brought suit? A. He offered that as a compromise.

“Q. That was all the judgment you got against him? A. That is my understanding.

“Q. In other words, Mr. Schultz made an offer of all the City Council had a right to collect? (Mr. Fraser, interrupting): The judgment was for $36.69.”

The record further shows that a meter was installed in the premises occupied by the plaintiff; that it was read for a few months, and then for a number of months it was not read, and apparently was not operating. The record also shows that a few statements or monthly bills were sent by the clerk of the town of Lakeport to the plaintiff.

Ordinance No. 93 of the town of Lakeport specifies that the town of Lakeport might make rules and regulations for the use of water. Section 2 of the ordinance reads: “Every person taking the water shall be considered as having expressed his consent to be bound by said rules and regulations, and whenever any of said rules and regulations are violated, the right is reserved to shut off the water without notice and the person whose water is thus shut off shall forfeit all payments made, and the water shall not be turned on again until all unpaid rents and charges are paid, together with a charge of $1.00 for turning on the same again.”

Section 9 of the ordinance provides that all water rates shall be paid to the superintendent of water rates, in advance.

Section 13 reads: “Meter rates are due and payable monthly on presentation of bills,” etc.

The general rule is, as contended by the appellants, that a water company, public or private, may adopt reasonable regulations for the conduct of such business, and may by rule provide that the water furnished may be cut off for nonpayment therefor. This rule has its limitations. Dodd v. City of Atlanta, 154 Ga. 33, 113 S. E. 166, 28 A. L. R. 465, has appended thereto a long list of annotations giving an almost unlimited number of cases relative to the question of the right of a city or water supply to shut off water in the event of nonpayment of bills. Practically all of the cases make an exception, and that exception relates to disputed bills, and denies to water companies the power to arbitrarily shut off a water supply unless payment is made of the disputed bill as claimed by the water company. This exception is clearly set forth in the case of Poole v. Paris Mountain Water Co., 81 S. C. 438, 62 S. E. 874, 877, 128 Am. St. Rep. 923. (We quote from 81 S. C. 438, 62 S. E. 874, 128 Am. St. Rep. 923, page 928 as follows): “While a public service water company has the right to cut off a consumer's water supply for nonpayment of recent and just bills for water rents, and may refuse to engage to furnish further supply until said bills are paid, the right cannot be exercised so as to coerce the consumer into paying a bill which is unjust, or which the consumer in good faith and with show of reason disputes, by denying him such a prime necessity of life as water, when he offers to comply with the reasonable rules of the company as to such supply for the current term. State v. Citizens' Tel. Co., 61 S. C. 83, 39 S. E. 257, 55 L. R. A. 139, 85 Am. St. Rep. 870; McEntee v. Kingston Water Co., 165 N. Y. 27, 58 N. E. 785; Wood v. City of Auburn, 87 Me. 287, 32 A. 906, 29 L. R. A. 376. The inconvenience arising from subjecting the water company to the necessity of resorting to the regular courts to collect disputed claims is not to be compared to the hardship of the consumer, as a member of the public, involved in permitting the water company to be judge in its own cause, and to coerce the disputant into submission by denying him water.”

In 67 C. J., p. 1267, § 821, we find the following, relative to the right of a water company to shut off water in the event of the amount due being disputed, to wit: “Neither can it be resorted to as a means of col ecting an overdue and disputed instalment of water rent after the company has accepted payment of a subsequent instalment, or of collecting a debt for water supplied at a previous time, and by another Company assigned to the one asserting the right; and, when he tenders payment of the established rate in advance for the service he is demanding, the company cannot, as a condition precedent to supplying him, require a consumer to pay an old or disputed bill for water furnished him at some previous time,” etc. In the instant case the demand is made that the plaintiff pay a bill slightly in excess of $208, upon which there was legally due, both for the water furnished the plaintiff's residence and the water furnished to his store, the sum of only $72.69. Under such circumstances, the appellants had no legal right to shut off water from the premises the plaintiff was occupying. We quote from 27 Ruling Case Law, p. 1457, relative to the right of a water user to maintain injunction, to wit: “A consumer of water may recover excessive charges made where he pays under protest and by reason of a threat to turn off the water if payment is not made, for a payment under those circumstances is not voluntary. Where a water company threaten to turn off a consumer's supply unless he pays excessive and illegal charges, he is not bound to show a tender of the exact amount due as a condition to a recovery of the excess, where it is clear that a tender would be useless. But this remedy is not adequate and he may seek relief in equity and under proper circumstances the company will be restrained from shutting off the water till the determination of the question involved. An injunction is the proper remedy to prevent the shutting off of the water in cases where the consumer denies in good faith either his liability or the amount of the charge.”

In the instant case, it is shown by the judgment of the court in an action instituted by the defendants that the plaintiff was liable only for the sum of $72.69, and that the plaintiff had tendered to the appellants within 69 cents of the amount found due for water used at his residence and for the irrigation of his garden.

We think the record justifies the following language, which we find in the opinion of the trial court denying the appellants' motion for a new trial, to wit: “The position of the plaintiff in the matter is that he tendered payment of his current bills at the rates fixed by the City Council, and stood ready at all times to pay the amount actually due from him to the City when and as the same should be finally determined, and in fact, did offer to pay a sum equivalent to that which was later adjudicated to be due. Furthermore, he at all times demanded the restoration of water service to his property, and, as the record discloses, was almost in constant negotiation with the City authorities from the date of the first demand until water service was finally restored.”

While a number of cases do hold that where the payment of a slight sum may avoid excessive damages, such payment should be made, and we may quote from the opinion of the trial court, which answers the contention of the appellants that the plaintiff should have taken that course, to wit: “In this case, however, the demand of the defendants amounted to approximately fifty per cent. of the damage awarded plaintiff. There was no source of water supply available, other than that maintained by the defendants. Plaintiff could only secure water from them upon the condition that he pay the amount demanded, which an adjudication in the Justice's Court determined was not due. It cannot be said that under the circumstances of this case the plaintiff would only be put to a slight expense where he was called upon to pay approximately fifty per cent. of the actual damage sustained before he could procure an adequate supply of water. The courts have been no less hesitant to refuse to apply the rule contended for by the defendants under such circumstances. Chambers v. Belmore Land, etc., Co., 33 Cal. App. 78, 164 P. 404; Joerger v. Pacific Gas & Electric Co., 207 Cal. 8-28, 276 P. 1017; Coulter v. Sausalito Bay Water Co., 122 Cal. App. 480, 10 P.(2d) 780.”

The language found in volume 1, Farnham on Waters and Water Rights, p. 854, relative to the shutting off of water, is applicable here: “It” (referring to powers of water companies) “will not be allowed to use its power to shut off the water for an ulterior purpose, or to compel payment of disputed bills. The right is given it solely with reference to current matters and to compel payment of bills from period to period as they accrue; and if the transaction is closed, or there is doubt as to the validity of the bill, or the power to shut off the water involves the exercise of a right on the part of the company which is not clear, equity will interfere to protect the consumer.”

It follows as a necessary conclusion from what we have said, and the authorities cited, that the appellants in this case had no right to shut off the water in order to compel the plaintiff to pay any items for the use of water against which the statute of limitations had run, irrespective of whether the items in the respective bills or charges were or were not for water actually used. What we have said also shows that the findings of the court were amply supported as to the tenders of payment made by the plaintiff and the refusal of the appellants to accept the same, and also of their attempt to compel payment of accounts which legally could not be collected.

The court awarded damages in the sum of $450. The record shows that the plaintiff had cultivated a garden of considerable size, planting the same to different kinds of vegetables, berries, etc., from which he made sales during the producing season. The plaintiff claims that his damages amounted to the sum of $688.85.

The plaintiff testified as to the quantity and value of the various products destroyed by the lack of water. After testifying as to the various items or products destroyed, the witness stated that he gave the wholesale value. There does not appear in the record any testimony as to the cost of marketing. However, the various items set forth in the transcript, and testified to by the plaintiff, give a value considerably in excess of the damages allowed by the court, and therefore the court must have made some deductions on account of the cost of the harvesting and marketing. It does not appear that either plaintiff or appellants attempted to follow the rule approved in Teller v. Bay & River Dredging Co., 151 Cal. 209, 90 P. 942, 12 L. R. A. (N. S.) 267, 12 Ann. Cas. 779, in determining damages where growing crops have been destroyed either by flood waters or lack of water for irrigation. However, no objection was made by the appellants to the manner in which the testimony set forth the damages suffered by the plaintiff. Without giving the quantity or value of the different products destroyed, we will list the different items, to wit: Pole beans; special pole beans; lima pole beans; yellow and red tomatoes; large red tomatoes; bush beans; long carrots; row of chards; row of salsify; three rows of gladiolas (460 feet in all); one 90-foot row of chrysanthemums; four 90-foot rows of raspberries; one 90-foot row of peppers; strawberries, 3 patches, one 40x40 feet, one 30x30 feet, and one 60x4 feet; patch of cantaloupes, 30x50 feet; patch of violets; destruction of lawn; young berry plants; loss of fall garden carrots, cabbages, beets, onions, etc.; cost of hauling water; loss of reseeding bulb seeds. Total $688.65. The size of the garden did not cover more than possibly one-third of an acre, or perhaps a smaller portion, but the entire crop, according to the testimony in the record, and which justified the court in so finding, was lost by reason of the failure to furnish water.

While the value of the crop, as testified to by the plaintiff, appears to be somewhat excessive, we find nothing in the record and nothing has been pointed out which would justify this court in holding that the trial court erred in fixing the plaintiff's damages at the sum of $450.

Complaint is made that the court erred in sustaining objections to certain portions of the testimony of the witness Donner, sworn on behalf of the appellants. That the court did not err is fully shown by quoting the testimony:

“Q. How long have you been raising vegetables? A. Thirteen years.

“Q. Have you been down there at Mr. Schultz's on the lakeshore? A. I have.

“Q. You have seen where his vegetable garden is there? A. Yes.

“Q. You have heard him testify yesterday, he estimated, because he did not get water on that land, he lost $688.65. Was that possible?” (Answer not allowed.)

“Q. You heard him testify as to what vegetables he had on that particular property, did you not? A. Yes.

“Q. And after hearing that testimony, what would you say would be the estimate of the money that could be taken off that particular land?” (Objection to the question was sustained.)

In addition to home use, the plaintiff sold the products of his garden at the store conducted by him in the town of Lakeport. None of the testimony sought to be introduced by the appellants tended to show the quantity of vegetable and berry products that could be produced from a garden belonging to the plaintiff, market value, or cost of production. It was all along the line similar to the questions which we have set forth herein, from which of course the trial court could draw no conclusions.

The judgment is affirmed.

Mr. Justice PLUMMER delivered the opinion of the court.

We concur: PULLEN, P. J.; THOMPSON, J.