City of Bucyrus v. Sears , 34 Ohio App. 450 ( 1930 )

The plaintiff city, owner and operator of its own waterworks, having furnished water to a tenant of the defendant, R.V. Sears, who failed to pay the water charges, now seeks to enforce the charge against the real estate of the defendant. The right to do so is claimed by the city under and by virtue of Sections 3956, 3957, and 3958, General Code.

In the first section mentioned, the director of public service is given the full management, control, and conduct of the city water supply. In the second section mentioned, he may adopt such by-laws and regulations as he deems necessary for the safe, economical, and efficient management and protection of the water works. And by the last section, he may assess and collect from time to time a water rent of sufficient amount, as he deems most equitable, upon all tenements and premises supplied with water.

Under the rules and regulations adopted by him, and which have been in force since long before the times covered by the water supply furnished to defendant's property, it is provided that owners of property shall be held responsible for water used in their premises, but payments will be accepted from tenants; that in case the tenants do not pay in accordance with the rules and regulations of the department, water will not be supplied to property; and that all unpaid accounts for water shall be a lien against the property furnished, and shall be certified to the county auditor in accordance with the laws of the state of Ohio.

A demurrer was sustained to the petition of the city, which set forth substantially the foregoing facts, upon the theory that the statute and the city rules and regulations were unconstitutional. Error is prosecuted.

In our examination of the cases digested, we find a line of authorities without conflict, upholding the right of municipalities to make water charges and light charges for services furnished by city plants a lien against the property supplied.

In the case of City of East Grand Forks v. Luck, 97 Minn. 373,107 N.W. 393, 6 L.R.A. (N.S.), 198, 7 Ann. Cas., 1015, and cited in the brief for the city, a review of many of the cases is had, and the various objections to such procedure by a municipality are ably answered, both by the argument of the learned judge who rendered the opinion, and by the cases cited by him.

It is said therein that the property owner has no absolute right to call upon a city for water without regard to suitable terms controlling its use, and the city has the undoubted right to prescribe what those terms shall be, subject only to the rule that they must be reasonable and not prohibitory.

In the case at bar, the city had provided by its rules and regulations that any property furnished with water would be chargeable therewith, and that a lien would be held against it for the charges. A property owner who pipes his property and connects with the city waterworks assents and agrees to these terms.

Judge McKenna, in rendering the opinion in the case of Dunbar v. City of New York, 251 U.S. 516, 40 S. Ct., 250,64 L. Ed., 384, makes the same comment; that is, he says in substance that the consent of the owner was implied from the fact that the law and the rules and regulations imposing the water rents preceded the service which the owner permitted his property to receive, and that the water charge there in controversy was likewise imposed and made a lien on plaintiff's property by these rules, and the consent of plaintiff implied. No other conclusion can be possible.

The judgment is therefore reversed, and the cause remanded with instructions to overrule the demurrer, and for further proceedings according to law.

Judgment reversed and cause remanded.

JUSTICE and CROW, JJ., concur.