.,

CITY OF GAI,F.sBURG· V. GALESBURG WATER CO.
· · ·" f

,risdiction. of .. court to pis recover,)'. .In pase of U. S.v. Mdn'uJacturing Co., 1l2V. S. 645,5 Sup. Ct. Rep. 306, tlw Sl.lpreme court tinctly neld that whertl, pl,lrsuant to an act of congress, private propertr has been taken for public"us(;l by officers of the government, there is al1 implied upon the government to make compensation to owner, andaItnough the taking be irregular,and might have been joined, that the claimant, <lould waive his right to resist the officers of the government, and, electing to regard their action as lawful, might sue in the court of claims forjust compensation. We are of opinion that the amended petition does state a case from which a promise to make compensation may be or at any rate it states a case not sounding in tort, entitling plaintiff' to recover any damages he may be able to prove have been sustained ,by him. ''These considerations are also applicable to the ,second contention, viz., that the mere passing. of light across the plaintiff's land in the nighttime, or the mere exhibiting. range signals in the day-time to be seen across it. is not a use of landfor which compensation can be recovered. In our judgment it is immaterial whether the suit is to he considered as one for usa and occupation of land by the United States, or for damages resulting from the prevention of plaintiff's use of his own land. Section 5 of the act of March 3, 1887, c. 359, provides that the plaintiff shall bring his suit by petition, anchhall set forth "the nature of his claim, and a succinct statement of the facts upon which the claim is based, the money or other thing claimed, or the damages sought to be recovered, and praying the court for a judgment or decree the facts and the law." The form of action is not. therefore, material, and such a petition is not demurrable if it sets forth facts from which a contract may be implied. or if it alleges lawful and authorized acts of the government, nottorts onts agents, upon which an obligation to pay damages may be sustained. The demurrer is overruled.

CITY OF GALESBURG

v.

GALESBURG

W AT.ER

CO.

et al.

(Oircuit OOU'1't, N. D. lllinoi8. March 20,1888.
)IUNICIPAL CORPORATIONS-CONTRACTS-RESCISSION-EsTOPPEL BY RESOLUTION OF CITY COUNCIL.

A city that has granted a party the right, for a specified time, to erect waterworks. and supply the city with water for public and private use, is not estopped by a resolution of the city council, reciting that the water-works stood the test required by the ordinance, from maintaining an action to rescind the contract, the works proving 'inadequate, against a corporation to whom the contract had been assigned. and holders of bonds Issued by such co.rporation, who had purchased subsequent to the passage ofthe resolution. The bondholders, however, are entitled to 8 fair remuneration for the watcr actually furnished and consumed.

676

I'EDERAL REPORTER.

In Action by the city of Galesburg against the Galesburg Water Company to have a contract for a water supply set aside as fraudulent and unfulfilled. The action was brought in the state court. On application of the Farmers' Loan & Trust Company ofNew York, the assignees under a trust deed of the water company, they were made parties defendant, and the suit was removed to this Ftetcher (Jo:r'l1!JY and F. A. Willoughby, for complainant. Turner, McOlure &: Rolston and Arthur Ryerson, for defendant.
GRESHAM, J., (orally.) By an ordinance passed on the 12th of May, 1883, the city of Galesburg granted to Nathan Shelton the right to construct and maintain, within and near the city, water-works to supply both publi<;and private wants, for a. term of 30 years; the yearly rental for fire hY<lrants being specified in the ordinance. This ordinance was accepted by Shelton. At and previous to this time, the city had maintained an imperfectsystelll of water-works, and the old mains were sold to Shelton at a price to be ascertained in the future, and paid for in water-rents. Shelton caused theGalesburg Water-Works Company to be organized, and assigned to it his contract with the city. In August, 1883, the Water Company, by its.trust deed, conveyed to the Farmers' Loan & Trust Company of New York its property acquired and to be acquired to secure the payment of all issue of bonds amounting to $121,000. The Water Company proceeded to erect the works and lay down additional mains, and on December 6, 1883, the city Was notified that the works had been completed, and that the Water Company was ready for the test called for by the ordinance; and on the same day, the members of the common council being present,such test was satisfactorily made, as appears from ail ordinance oUhe common council. A few months later complaints were made both as to the character and quantity of the water. In the summer or fall of 1884 the Water Company admitted its failure to supply water according to the terms of the contract,· and further time was given it to sink gang-wells, which it was thought would secure an abundant supply. After sinking such wells, the Water Company claimed that it was able to fulfill the contract; but it failed and refused on request to demonRtrate its ability to do so 1Jy a proper test of its works; and the proof shows that this claim was unfounded. On the 1st of June, 1885, the city, by an ordinance, rescinded the contract with Shelton, and by its officers repossessed itself of its old water-mains for use and protection from fire, and brought this suit in the state court at Galesburg to set aside the contract for fraud and non-compliance on the part of the Water Company. The ord; nance granting the franchise to Shelton required him to furnish pure water of a maxim\lm quantity, and provided that the city should not be liable for hydrant rents for such time as the works did not supply the required amount of water. The city paid no hydrant rents to the Water Company.. Shelton obligated himself to construct a system of works which would enable him to furnish a supply of water for the use of the inhabitants, also for the use of city build-

CITY

GALESBURG fl. GA.LESBURG WATER CO.

677

ings, public schools, churches, drinking fountains, and for fire purposes. The evidence conclusively shows that the WlI.ter Company failed to comply with its contract, although a reasonable time was afforded it to do so; that the water furnished was impure and insufficient in quantity; that it was drawn, in part, from a creek or swamp, which was polluted by the drainage from slaughter-houses, and by night-soil and dead animals dumped into it by The Water Company thus trifled with the health and the lives of the people. It is not contended, I think, that Shelton or his successor, the Water Company, complied with the contract. On the application of the Farn1ers' Loan & Trust Company it was made a party defendant, and on its motion the suit was removed to this court, and the purchasers at the sale in the foreclosure suit brought by the trustee against the Water Company, and who were substituted for the trustee, now urge that the city, by adopting the resolution of December 6. 1883, declaring that the works had been constructed in compliance with the contract, and that they were satisfactory, was estopped from asserting against the trustee of the bondholders and the purchasing committee that the contract had not been complied with. It is fair to aSsume that those who purchased the bonds did so in good faith, and that they relied, in part at least, on this resolution. The Water Company, by its trust deed, conveyed no greater right than it had. The mortgage contained a clanse which authorized the trustee to receive from the city water rents due to the Water Company, to enable it to pay interest as it accrued on the bonds. But the right of the Water Company to rents depended upon its continued compliance with the contract. The water which it furnished was deficient both in quality and quantity, and it was not, therefore, entitled to rents. The purchasers of the bonds knew that unless water was furnished in quantity and quality as called for by the contract, nothing would be due from the city. A different ruling would be equivalent to holding that byadopting the resolution of December 6th the city guarantied the payment of interest which would thereafter accrue on the bonds. The city did nothing of the kind. By the trust deed and mortgage, the Farmers' Loan & Trust Companyand the bondholders succeeded to the rights of the Water Company. If this. were a suit between the city and the Water Company, I Should grant thereHef prayed for without allowing anything for water furnished, for none was furnished in compliance with the contract. But the controversy now is between the city and the persons representing the bondholders, and I think it equitable that the city should pay them a reasonable compensation for the water, such as it was, which was furnished up to the time it resumed possession of the old mains. J do not think the bondholders' committee is entitled to the old mains. They were not sold to Shelton unconditionally and absolutely. They were sold to him to be used in a particular way, and for a particular purpose, and to be paid for by water furnished under the terms of the contract. Shelton and his successor, the water company, having failed to comply with the contract, although afforded ample time to do so, the city was authorized

!.

to possession its old and. proteot its inhabitants. against fire as beat it' ' . A reference will be ml:lde wthe master to ascertain and report the fair value of thew-ater furnifShed :to the city by the Water Company; and when the city shall pay into oourt, for the bondholders' committee, the amount thUl;1' ascertained , a decreElwill be entered annulling the contract, the city's title to the old mains.

of

TAYLOR 'It. ROBINSON, (J)ilflrict Oourt,
TAXATION-TAXABLE

Sheriff.

March 81,1888.)

N.

D. Te3Jal.

Under Rev. St. Tel[. art. 4691, providing that who.ever holds state lands under a contract of purchase, or under a lease for a term of three years, shall be considered. for the purposes of taxation, the owner of the same. one who contracts with a state to build for it a capitol, and, in payment, is given poslession of lands. under a contract which provides that he is to become the owner thereof in installments as the work progresses. the land being platted for that purpose; and which also provides that if he abandon his contract be is to pay rent upon that portion of the land which he has not then earned, is properly assessed before such abandonment, upon the unearned lands, as a holder under a contract of purchase.

HELD UNDEltCOl,'fTRACT Oll' PuRCHASB.

In Equity. On bill for injunction. The complainant, Abner Taylor, seeks to enjoin the dp-fendant, J. M. Robinson, sheriff and tax collector of Oldham county, Tex., from collecting taxes assessed against him upon certain state lands which he bolds under a contract of purchase. Rayland, Robertson & Coke, for complainant. J. S. Hogy, Atty. Gen., and R. H. Harrison. Asst. Atty. Gen., for defendant. .
McCoRMICK, J. The constitution of this state, art. t3, § 1, provides that "taxation shall be equal and uniform. All property in this state, whether owned by natural persons, or corporations, other than municipal, shall be taxed in proportion to its value: * * * provided, that two hundred and fifty dollars worth of household and kitchen furniture, belonging to eaoh family in this state, shall be exempt from taxation. * The legislature may ,by general laws, exempt from Seo. 2. taxation public property used for public purposes; actual places of religious worship; places of burial not held for private or corporate profit; all buildings used exclusively and owned by persons or associations of persons for Bchool purposes, (and the necessary furniture of all schools;) and institutions of purely public charity. And all laws exempting property from taxation other than the property above mentioned shall be void." Article 4691, Rev. St. Tex., provides: "Property held under a. lease for a term of three years or more, or held under a contract for the

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