NEW ORLEANS WATER-WORKS CO.
NEW ORLEANS WATER-WORKS CO. V" ERNST and others. SAME v. MAGINNIS OIL & SOAP WORltS. SAME 1.1. RuCK. SAKE 1.1. NEW ORLEANS C. & L. R. CO.1
(Circuit Oourt. E. D. LouiaianfJ. June lli.1887.)
On Rule NiRi for Injunctions. J. R. Beckwith, for complainant. B. Frank Jonas and J. O. NiaxYn, Jr., for Ernst & Co. and Louis Ruch. W. B. Benedict, for Maginnis Oil Co. Goo. H. Braughn, Chas. F. Buck, Max Dinkel8peil, and W. O. Hart, for New Orleans C. & L. R. Co. BILLINGS, J. Two questions are presented in addition to those alread.y passed upon by former decrees in this court: 1. Whether an injunction shall issue when the complainant has no mains, or no adequate mains, for the delivery of water in sufficient quantities for the wants of the defendants. This question must be an· flwered in the negative, from the very title of the act under which the complainants claim, which is as follows: "No. 33. An act to enable the city of New Orleans to promote the public health, and to afford greater security against fire, by the establishment of a corporation to be called the 'New Orleans Water-Works Company,'" etc. It cannot be that it was the intention of the legislature to deprive any person of, or:to limit any person in, the use of water by the exclusive right given to complainant. The object of the grant, and the creation of the water· works corporation, was to furnish, and not deprive of, water. The clause in complainant's charter which requires it to lay mains in streets whenever the water rates in any street of petitioners amount to 10 per cent. per annum of the cost of laying mains, was intended to give the citizens an additional right, and by no means takes away their
by Joseph P. Hornor, Esq., of the New Orleans bar.
right to supply themselves with water if the complainants have not the ··iiihUities:1iherefor., Wherever; [therefore, .theaomplait)a.nt;bnsi fi9 maillS the 'str.eet on which the or ,to be supplied, with water is situated, or wherever .there: are mains, but they are inadequate to furnish the amount of water requisite for the defendants' use, theinjl,lnc:tionis re,fqsed. Whenever· the defendants desire, the matter as to whether there are mains, or whether they are adequate, may be referred to a master to take the evidence, and report the same,with' his conclusions, tb court. .. with to "contiguous perllons." The grant is (section- 5) "of the exclusive privilege of supplying the city of New Orleans and its inhabitants with water from the Mississippi river, or any other strea!Jl or river, by llleans of pipesand conduits." The charter furtherprov.ides (inter alia) that the water-works company "may have the right to levy and plaqe· any number of conduits or pipes or aqueductS,lllj.d to' (Jleanse and repair the saine, through or over any of the lands .or streets of the city of New Orleans." Section 18 of the charter provides in this act 'shall be so construed as to prevent the city c9U1)..clLiroII\ grantingtoanY person or persOIls, contiguous to the river, the privilege of laying pipes to the river, exolusively for his or their own use." In Wnter-Works 00. v. Rivers, 115 U. S. '674,6 Sup.Ct. Rep. 273, the supreme court decided that the proprietor of the St. Charles Hotel was not 'fa' contiguous person." .. The St. Charles Hotel is five blocks from the river. It being settled ,that it is not contiguous, it seems to me that no lot Can be contiguou8unless it actually fronts on the river, ·oris separated from the river only by a public highway, with no private owner intervening, or possibly on a block or square so situated. There is noline of demarkation short oHhis; for, ina broad sense, the whole city of New Orleans is contiguous to the Mississippi river. I think that the· question of contiguity must have been meant to be determined by present circumstances. The limitation in the eighteenth ·sectionoftheoharter presupposes a right already existing which isrec,ognized, not created. If anowher had been, but is not now, within the ·meaning of the term ,"contiguous;" as here used, his former right would .have.passed from him along with all other rights dependent uppn continued, present contiguity. It follows, no one of the defendants is a ;person conHgu6u.s to -the Mississippi river except Louis Ruch. His property iueparated .from the rivet only by a street: or public bighway, person." and he is a 3. As to the . price t6 he charged for; the delivery of water. The 8U·preme oourt Ofoufstate have construed the provision of the charter as ;to what should be the maximum price or rate. This rate must not be ;exceeded. . The inJunotion isrefused,litsto defendant Ruch, and as to the defendant the New Orleans City Railroad Company, to the extent to which there are no mains on the street adjacent to the places where they reo quire and obtain water. In the other cases the injunction will issue.
The injunction will be conditioned that the rate of the charge shall in no case exceed that established by the supreme court, and a defendant may at any time apply to the court for an order to enforce this condition.
v. MACON and
.(aiR-cuit Court,' E.
May 30, 1887.)
OOBPORATIONS-RECErvER,;""CONSTRUCTION OF ORDER-'AsBEBSMENTIl.
In a suit brought by a st0okholder, on behalf of himself and of oth/1r stock+ holders who mayjQin himin suit, against the corporation, its dire<;,Jrs and sl1perintimdent, seeking an injunction to prevent waste, and asking for a receiver,' receiver wail appointed, and the order. contained J these words: "And; Uthere shall be any sums due upon thersbal,'es of capjtalstock of said cOIllpany. the. said receiver will proceed to and recover the.si!.me, unless the,persons from whom the said sums may be due sball be wholly solvent; and for this purpose may prosecute actions, "etc. Beld,that the authority intended to be confex:red WaS merely to bring suit in case the court should assessment, and that the order of itself did not amQunt to a . call,.. from which prescription would begin to rUD.
On Motion for New Trial. Alfred GoldthwaUe, for plaintiff. Tlwmaa J. Semines and James Legendre, for defendants.'
BILLINGS, J. This action is brought for the recovery of 70 per cent. of the subscri)?tion, as shareholders, against numerous citizens of this state. All other questions having been adjudged, the remaining question is to be considered whether the order appointing a receiver,and defining his powers, in the case of Reynolds v. National, Exp. ct Tramp. Co., formerly pending in the circuit court for the Fourth circuit of the United States, district of Virginia, on January 12, 1867, amounted to a call upon the stockholders for the fllllamollnt of theirsubscriptiolls for stock. The question is, did the order or decree amount to any call at all? If it did, theI\ it is' conceded 'prescription began to run, and the action would, to the extent of the call" be barred. That suit is an action instituted by Reynoldsasa stockholder, he owning, as he alleges, 50 shares of the stock of the corporation, in behalf of himself and the other stockholders who may join him in the suit against the corporation, its directors and superintendent. The suit was an injunction suit to prevent waste by paying usurious interest and by gross negligence. A receiver is also asked for, and was appointed. The order appointing the receiver is in the usual form, and contains these words: "And, if there shall be any sums due upon the shares ofthe capital stock of the said company, the said receiver will proceed to collect and recover
JReported by Joseph P. Hornor, Esq., of the New Orleans bar.