144

FEDERAL REPORTER.

THE MALTA.! THE MALTA V. SEVEN -HUNDRED TONS OFCHALX. (DiBf!l'iet OOU'l't. E. D. Pennsylvania.
BHl'l'PING--DEMURlUGE-ATTAmnmNTB.

January 31, 1888.)

by the issuing of attachments under conflicting claims to it.

A claim ap;ainst the oargo for

will be allowed for delay caused

In Admiralty. Charles Gibbom, Jr., for libelant. Adams &- Edmwntb, for respondent.
BUTLER, J. There i5no disputEi about the freight claimed. The l:belant is clearly entitled to demurrage. She is 'not in any way responsible for the delay. She' had a lien for the freight and demurrage on the cargo, alld was not interested in the dispute over it. She had a right to hold it lintil paid. The parties clahiling the cargo having chosen to dispute about it, and thus create d:elay, they must. bear the consequence. '1'0 cast the loss on the libelallt wouldqbe grossly unjust. She was not blamable for to discharge on a filthy wharf at the marshal's requeEt. Had she ,so discharged she would have incurred risk of liability fordamage, as well as risk of losing her proper charges, by injuring the merchandise,to which she must look for payment. The sum claimed fordelay, however, is too great. How much should be allowed per day, the evidence does not render certain: 'The number of days properly chargeable I find to be 16. Starting with October 11th, seven days are allowed for unloading the chalk, As the vessel was not docked until after 9 o'clock 1n themorning,a full day's work could not be done on that day. The interveningSunday must be thrown out; and one day allowed for unloadingthe cement. This leaves 16 days for which the respondent is liablethe uDIoadfng of the entire cargo having been completed by the fourth <,>f November; inclusive. What rate of compensation per day should be !l:llowed must be referred to a cO:qJ.missioner, unless the parties can agree it.
1 Reported

by C. Berkeley Taylor, Eeq" of the Philadelphia bar.

STEIN V.· BIENVILLE W ATER-BUPPLY 00.

145

STEIN V. BIENVILLE WATER-SUPPLY

CO.

OOU1't, 8. D. Alabama.

March '1, 1888.)

1.

CONSTITUTIONAL LAW-MoNOPOLIES AND PRIVILEGES-WATER COMPANIES.

The city of Mobile, having acquired by purchase or forfeiture tho franchises and plants of two water companies chartered. respectively. in 1820 and 1837, entered into a contract in 1840 with one S.· whereby, in consideration of certain covenants contained in the agreement, he was granted" the sole privilege of suppl,ring the city of Mobile with water from the Three-Mile creek for twentr years from the date of the contract. He.wasalso invested with whatever rIghts and privileges the city had derived from the defunct companies. Thll creek referred to was the most accessible source forthe city's water supply, and. the city had, when the contract was made. certain water-works at that point, which it had acquired from one of the old corporations. The company of 1820 was charta-redo for 40 years, and for the purpose, clearly expressed in the act, of conducting water "from Three-Mile creek" for use in Mobile. The company of 1837 was incorporated upon the repeal of the charter of 1820, and was invested for about 20 years with the exclusive franchises conferred by that charter. The city then bought out the corporation of 1837, and made the contract with S.· which the legislature confirmed in 1841, vesting in S. the privileges under the acts of 1820 and 1837, so far as consistent with the contract of 1840. Held. that the exclusive privilege of supplying the city with water was confined to water taken from the Three-Mile creek, and that thll grant in 1883 to another corporation of the exclusive right of conducting'and bringing water into the city from apy point other than ThreeMile creek did not legallv- "impair" the obligation of the contract of 1840. 1 In granting an exclusive franchise to supply water to one of its cities and its inhabitants, the legislature of the state does not part with the police power and duty of protecting the public health. 1 The preamble of a statute incorporating a water company. recited, among other things, "that certain individuals have agreed to associate themselves to-. gether for the purpose of conducting a supply of water from a creek called 'Three-Mile Creek: for the lise of * * * the city of Mobile." It then provided that the said corporation "shall have and enjoy the exclusive right and privilege of conducting and bringing water for the supply of said city for the space of 40 years," provided the water was from said creek within three years from the date of the act, and in the manner therein prescribed. Held, that the exclusive privilege of supplying water to the city was confined to water drawn from the Three-Mile creek. . Where the exclusive rIght of supplying a city with water is confined to water draw-n from a cettain source, the right of using the streets free of charge for the purpose -of laying pipes, etc., for the, conveyance of such water, granted in the enabling statute, is not impaired by a subsequent grant of eminent domain to another company drawing its supply from a different source.

2.

BAME-POLICE POWERS.

a.WATER COMPANIES-CHARTERS AND FRANCHISES-CONSTRUCTION.

4.

BAME-CONsTITUTIONAL LAW-IMPAIRING OBLIGATION OF CONTRACT.

I.

SAME-DURATION OF FRANCHISE.

A contract between the city of Mobile and one S. provided that S., his executors or assigns. should bave the exclusive right for 20 years of supplyhig the city with water drawn from a certain source, and, until the city should redeem the plant, S. should have quiet possession of it, without let or binderance from the citr or from anyone claiming under it. Held, that the franchise did not expIre with the 20 years, but that it remained a monopoly in the hands of S.'s executor. (S. having died,) until the city redeemedthlt plant as provided in the contract. :

IBee note at end of case.

v.34F.no.3-10