Whitehouse, J.
This is an action on the case brought by individual owners of property destroyed by fire, to recover damages for their loss against the defendant water company on the ground that it resulted from the negligent failure of the defendant to keep its hydrants in proper condition for use.
The defendant filed a general demurrer to the plaintiffs’ declaration. The demurrer was sustained by the presiding Justice, and the case comes to the Law Court on exceptions to that ruling.
It is alleged in the first count in the declaration that by virtue of a special act of the legislature, the defendant company, a public service corporation, constructed a system of water works and undertook the duties of a public water company and began to furnish water for public and private uses including the furnishing of water in hydrants to be used in extinguishing fires within the limits of the village corporation in Presque Isle, known as the Presque Isle Village Fire Department; that it thereby became the duty of the defendant to keep its hydrants in proper condition for use in the extinguishment of fire in that village; that its hydrants were so [223]*223carelessly maintained that the water in the hydrant opposite the Presque Isle Opera House owned by the plaintiffs, was frozen, and the hydrant rendered useless, and that in consequence of the defendant's negligence in that behalf, the Opera House and another building owned by the plaintiffs, were entirely destroyed by fire.
In the second count it is alleged that in pursuance of a special act of the legislature the defendant constructed a system of water works in Presque Isle and under a contract with the Presque Isle Village Fire department began to furnish water for public and private uses, including the furnishing of water and hydrants to be used in extinguishing fires in the village of Presque Isle ; that under its contract it was the duty of the defendant at all times to keep its hydrants in proper condition for use in extinguishing fires ; that this duty was so carelessly performed by the defendant that the water in the hydrant in front of the Presque Isle Opera House, owned by the plaintiffs, was allowed to freeze and the hydrant to become useless ; and that in consequence of the defendant’s negligence in that behalf, the Opera House and another building owned by the plaintiffs of the total value of $30,000 were entirely destroyed by fire.
It thus appears that the first count contains no averment of any express contract either directly between the water company and the plaintiffs, or between the water company and the village corporation in which the individual property destroyed by fire, was situated, but simply states as a legal conclusion from its undertaking to render service as a public, water company that it was the defendant’s duty arising therefrom to maintain its hydrants at all times in a proper condition for use. The second count contains a general allegation that the defendant water company undertook to furnish a supply of water under a contract with the village corporation, and states as a legal conclusion that it was the defendant’s duty under the contract to keep its hydrants at all times in proper condition for use, but fails to specify what the stipulations of the contract were which would justify such a conclusion. An allegation of duty alone, however, is not sufficient. There must be an allegation of facts sufficient to create the duty; otherwise the declaration will be defective. A demurrer only admits such facts as are well [224]*224pleaded in the declaration. It does not confess a matter of law deduced by either party from the facts pleaded. Nickerson v. Bridgeport Co., 46 Conn. 24.
It may therefore be a matter of grave doubt whether the important question argued by counsel is properly raised by the pleadings; but inasmuch as this objection appears from the argument to have been waived by counsel the case has been considered upon the assumption that it was the' duty of the water company, as between the village corporation and itself, to keep its hydrants in proper condition for use in furnishing water for the extinguishment of fires in winter as well as in summer.
This court is thus for the first time brought face to face with the question whether an individual owner of property destroyed by fire can maintain an action' on the case against a public service water company for a loss resulting from the negligent failure of the company to furnish a supply of water, either in a case where the duty of the company to furnish water arises solely from an accepted service for general fire purposes or from a general contract on the part of the water company with the municipality to furnish water for such purposes without a specification of any particular thing to be done to that end and without any stipulation respecting liability for losses by fire. But the question has been decided in numerous other jurisdictions, state and federal, and it must be admitted, and it is conceded by the plaintiffs, that the overwhelming weight of authority is against the maintenance of the action. It is insisted, however, in behalf of the plaintiffs that although an action ex contractu might not be maintainable, yet the water company having received valuable franchises under its charter and compensation for the service from taxation of individual property owners in the municipality, it is bound as a matter of public duty to perform its contract, and for any negligence on its part is liable in damages to the individual sufferers, the contract serving only as a measure of the duty resting upon such a public service corporation. The plaintiffs recognize the general rule of law that one who is not a party to a simple contract and from whom no consideration is received, cannot maintain a suit on the contract, and that a promise [225]*225made by one person to another for the benefit of a third who is a stranger to the consideration will not support an action by the latter, but it is contended that in this class of cases the consideration does move from the individual taxpayer of the municipality.
It is contended in behalf of the defendant water company that its contract with the Village Corporation known as the Presque Isle Village Fire Department, to furnish water through hydrants for the extinguishment of fires, did not make the plaintiffs parties or privies to that contract, and that those who are not parties or privies to a contract cannot maintain an action of tort for the breach of a duty arising solely out of the contract.
It is the opinion of the court that the plaintiffs’ declaration is not sufficient in substance, and that the action is not maintainable.
The distinctive character of municipal corporations in this State, and the circumstances and conditions under which the officials chosen by them are deemed to act either as corporate agents or as public officers engaged in the discharge of duties imposed by general law, have been subjects of frequent examination and discussion in the recent decisions of this court. Lovejoy v. Foxcroft, 91 Maine, 367; Burrill v. Augusta, 78 Maine, 118; Mitchell v. Rockland, 52 Maine, 118.
Free access — add to your briefcase to read the full text and ask questions with AI
Whitehouse, J.
This is an action on the case brought by individual owners of property destroyed by fire, to recover damages for their loss against the defendant water company on the ground that it resulted from the negligent failure of the defendant to keep its hydrants in proper condition for use.
The defendant filed a general demurrer to the plaintiffs’ declaration. The demurrer was sustained by the presiding Justice, and the case comes to the Law Court on exceptions to that ruling.
It is alleged in the first count in the declaration that by virtue of a special act of the legislature, the defendant company, a public service corporation, constructed a system of water works and undertook the duties of a public water company and began to furnish water for public and private uses including the furnishing of water in hydrants to be used in extinguishing fires within the limits of the village corporation in Presque Isle, known as the Presque Isle Village Fire Department; that it thereby became the duty of the defendant to keep its hydrants in proper condition for use in the extinguishment of fire in that village; that its hydrants were so [223]*223carelessly maintained that the water in the hydrant opposite the Presque Isle Opera House owned by the plaintiffs, was frozen, and the hydrant rendered useless, and that in consequence of the defendant's negligence in that behalf, the Opera House and another building owned by the plaintiffs, were entirely destroyed by fire.
In the second count it is alleged that in pursuance of a special act of the legislature the defendant constructed a system of water works in Presque Isle and under a contract with the Presque Isle Village Fire department began to furnish water for public and private uses, including the furnishing of water and hydrants to be used in extinguishing fires in the village of Presque Isle ; that under its contract it was the duty of the defendant at all times to keep its hydrants in proper condition for use in extinguishing fires ; that this duty was so carelessly performed by the defendant that the water in the hydrant in front of the Presque Isle Opera House, owned by the plaintiffs, was allowed to freeze and the hydrant to become useless ; and that in consequence of the defendant’s negligence in that behalf, the Opera House and another building owned by the plaintiffs of the total value of $30,000 were entirely destroyed by fire.
It thus appears that the first count contains no averment of any express contract either directly between the water company and the plaintiffs, or between the water company and the village corporation in which the individual property destroyed by fire, was situated, but simply states as a legal conclusion from its undertaking to render service as a public, water company that it was the defendant’s duty arising therefrom to maintain its hydrants at all times in a proper condition for use. The second count contains a general allegation that the defendant water company undertook to furnish a supply of water under a contract with the village corporation, and states as a legal conclusion that it was the defendant’s duty under the contract to keep its hydrants at all times in proper condition for use, but fails to specify what the stipulations of the contract were which would justify such a conclusion. An allegation of duty alone, however, is not sufficient. There must be an allegation of facts sufficient to create the duty; otherwise the declaration will be defective. A demurrer only admits such facts as are well [224]*224pleaded in the declaration. It does not confess a matter of law deduced by either party from the facts pleaded. Nickerson v. Bridgeport Co., 46 Conn. 24.
It may therefore be a matter of grave doubt whether the important question argued by counsel is properly raised by the pleadings; but inasmuch as this objection appears from the argument to have been waived by counsel the case has been considered upon the assumption that it was the' duty of the water company, as between the village corporation and itself, to keep its hydrants in proper condition for use in furnishing water for the extinguishment of fires in winter as well as in summer.
This court is thus for the first time brought face to face with the question whether an individual owner of property destroyed by fire can maintain an action' on the case against a public service water company for a loss resulting from the negligent failure of the company to furnish a supply of water, either in a case where the duty of the company to furnish water arises solely from an accepted service for general fire purposes or from a general contract on the part of the water company with the municipality to furnish water for such purposes without a specification of any particular thing to be done to that end and without any stipulation respecting liability for losses by fire. But the question has been decided in numerous other jurisdictions, state and federal, and it must be admitted, and it is conceded by the plaintiffs, that the overwhelming weight of authority is against the maintenance of the action. It is insisted, however, in behalf of the plaintiffs that although an action ex contractu might not be maintainable, yet the water company having received valuable franchises under its charter and compensation for the service from taxation of individual property owners in the municipality, it is bound as a matter of public duty to perform its contract, and for any negligence on its part is liable in damages to the individual sufferers, the contract serving only as a measure of the duty resting upon such a public service corporation. The plaintiffs recognize the general rule of law that one who is not a party to a simple contract and from whom no consideration is received, cannot maintain a suit on the contract, and that a promise [225]*225made by one person to another for the benefit of a third who is a stranger to the consideration will not support an action by the latter, but it is contended that in this class of cases the consideration does move from the individual taxpayer of the municipality.
It is contended in behalf of the defendant water company that its contract with the Village Corporation known as the Presque Isle Village Fire Department, to furnish water through hydrants for the extinguishment of fires, did not make the plaintiffs parties or privies to that contract, and that those who are not parties or privies to a contract cannot maintain an action of tort for the breach of a duty arising solely out of the contract.
It is the opinion of the court that the plaintiffs’ declaration is not sufficient in substance, and that the action is not maintainable.
The distinctive character of municipal corporations in this State, and the circumstances and conditions under which the officials chosen by them are deemed to act either as corporate agents or as public officers engaged in the discharge of duties imposed by general law, have been subjects of frequent examination and discussion in the recent decisions of this court. Lovejoy v. Foxcroft, 91 Maine, 367; Burrill v. Augusta, 78 Maine, 118; Mitchell v. Rockland, 52 Maine, 118.
It is only necessary to be reminded here that the inhabitants of the several cities and towns in this State are not voluntary associations or business corporations, but political agencies created for the more effectual discharge of certain duties of political government, and that the powers and liabilities of these agencies are only such as are conferred and created by the legislature.
It may be observed then, in the first place, that when a municipal corporation itself by authority of its charter maintains a system of water works for the use of its fire department, it is performing a public or governmental duty, and it is uniformly held upon what seems to be entirely satisfactory reasoning that in such a case the municipal corporation is not liable to individual taxpayers for failing to provide an adequate supply of water for the extinguishment of fires, unless expressly made so by provisions of the statute. 2 Dill. Mun. Corp. 976; Tainter v. Worcester, 123 Mass. 311; [226]*226Miller v. Minneapolis, 77 N. W. 788; Mendel v. City of Wheeling, 28 W. Va. 233; Vanhorn v. City of Des Moines, 63 Iowa, 447 (19 N. W. 293); Hayes v. Oshkosh, 33 Wis. 314.
If now instead of maintaining a system of water works of its own for the purpose of supplying water for the extinguishment of fires, a municipal corporation contracts with a water company to furnish water for that purpose, the numerous decisions of the courts of last resort in other States and in the Federal Courts, as before indicated, are practically unanimous in holding that the water company is not liable to the individual owner of property which has been destroyed by fire by reason of the company’s failure to furnish an adequate supply of water to extinguish fires. The apparent exceptions will be noted and considered hereafter. As stated by the court in Mott v. Water Co., 48 Kan. 12 (28 Pac. 989), "The fact that a city levies and collects a tax to be paid to a water company does not create any privity of interest between the water company and a citizen or a resident of the city. In making such contract the city discharges one of its duties for which it was ..created, and in raising the required money it only provides-the consideration due froni it,by virtue of the contract. A water company could- not proceed directly against a citizen or resident in the first instance, for unpaid money due under the contract from the city.....If a city is not liable to its citizens or residents, the water company is not. liable to such citizens or residents upon a contract between it and the city. The contract in such a case is between the city- and the water company only .... The la’w which authorizes cities to contract with individuals and companies, for, the building, and operating of waterworks confers no powers upon a city to make a contract of indemnity for the individual benefit of a citizen or resident of the city for a breach of the same. ”
In this State section 76 of chapter 4, R. S., empowers municipal corporations to "contract for a supply of water for municipal uses,” but it was obviously not the design of this statute to authorize cities and towns to make contracts to indemnify individual owners for the loss of property by fire resulting from the neglect of its officials to furnish an adequate supply of water to extinguish it, and there is [227]*227no suggestion in this case that any such express contract was in fact ever made or attempted to be made between the village corporation and the defendant water company.
One of the earliest cases in which this question was directly involved was Nickerson v. Bridgeport Hydraulic Company, 46 Conn. 24, which came before the Supreme Court of that State in 1878. Two of the counts in the declaration are strikingly similar to those in the case at bar, and the case has been cited above upon the question of pleading. The essential averments were that the water company had negligently failed to provide a supply of water for the hydrants to enable the city to perform a public duty which it owed to the plaintiffs and others to extinguish fires. In the opinion the court say : "The most that can be said is, that the defendants were under obligation to supply the hydrants with water. The city owed a public duty to the plaintiffs to extinguish their fire. The hydrants were not supplied with water and so the city was unable to perform its duty. We think it clear that there was no contract relation between the defendants and the plaintiffs, and consequently no duty which can be the basis of a legal claim.”
In 1887 the question came before the Supreme Court of Pennsylvania in the case of Beck v. Kittanning Water Co., 11 Atl. 300 (Pa.) The defendant was under contract to supply the town and its residents with water. The plaintiff’s brewery was destroyed by fire by reason of the neglect of the defendant .to provide a supply of water for the hydrant in that vicinity. But the court say : "The plaintiff in this case had no contract with the defendant for a supply of water for the extinguishment of fires, hence it owed him no duty in this respect, and on the basis of such contract he had, of course, no cause of action. As to the contract with the borough, with that he had nothing to do. That was a matter between the municipality and the water company, and his interest in it is too remote to raise such a privity therein as would, enable him to maintain this suit.”
In Davis v. The Clinton Water- Works Co., 54 Iowa, 59, (6 N. W. 126) the plaintiff sought to recover the value of her buildings destroyed by fire, upon the ground that the loss resulted from the defendant’s failure to perform its contract with the city to supply [228]*228water for the extinguishment of fires. It was held that there was no such privity of contract between the plaintiff and the city or between the plaintiff and the defendant water company, as would enable her to maintain an action against the water company upon the facts stated. In the opinion the court say: "The city in exercise of its lawful authority to protect the property of the people, may cause water to be supplied for extinguishing fires and for other objects demanded by the wants of the people. In the exercise of this authority it contracts with defendant to supply the water demanded for these purposes. The plaintiff received benefits from the water thus supplied in common with all the people of the city. These benefits she receives just as she does other benefits from the municipal governmént, as the benefits enjoyed on account of improved streets, peace and order enforced by police regulations, and the like. It cannot be claimed that the agents or officers of the city employed by the municipal government to supply water, improve the streets, or maintain good order, are liable to a citizen for loss or damages sustained by reason of the failure to perform their duties and obligations in this respect. They are employed by the city, and responsible alone to the city. The people must trust to the municipal government to enforce the discharge of duties and obligations by the officers and agents of that government.” Nickerson v. Bridgeport Co., supra, was one of the authorities cited in support of the decision.
This doctrine was reaffirmed in Vanhorn v. Des Moines, 63 Iowa, 448, (19 N. W. 233) and in Becker v. Keokuk Water Works, 79 Iowa, 419, (44 N. W. 694) although in the Des Moines case the city had taken a contract from the company to protect it from liability which might arise from the negligence of the company; and in the latter case, it was provided by ordinance that the water company should be liable for all injuries to persons or property caused by its negligence.
To the same effect was Howsman v. Trenton Water Co., 119 Mo. 304 (1893) where it was held that a water company that contracts with a town to furnish an adequate supply of water to extinguish fires and agrees to be liable for damages from fire result[229]*229ing from its negligence, cannot be sued on the contract by a citizen though he and other citizens pay a special tax to the company under the contract. In the opinion the court give the following reasons among others: "A municipal corporation, in making contracts for the benefit of its citizens, acts for them collectively, and for all of them, in every act, and the relation of privity is not, and cannot be, introduced into such contracts by reason of taxpaying or the discharge of any civic duty by any individual citizen.”
"The town had no authority to make a contract to indemnify the plaintiff' for the loss of his property by fire resulting from the neglect of its agents or servants to furnish an adequate supply of water to put it out, and therefor could not make such a contract that would be binding on another.”
It is true that special reference is made in the opinion to the fact that this was an action on the contract. But the existence of a duty to the plaintiff was an indispensable element of any legal claim. Negligence which consists merely in the breach of a contract will not afford ground for an action by any one who is not a party to the contract, and not a person for whose benefit the contract was avowedly made. Heaven v. Pender, L. R. 11 Q. B. Div. 503; Nickerson v. Bridgeport Water Co., 46 Conn. 24, supra; Shear-man v. Redfield on Neg. sect. 116. "The violation of a contract entered into with the public, the breach being by mere omission or nonfeasance, is no tort direct or indirect, to the private property of an individual, though he be a tax payer to the government. Unless made so by statute, the city is not liable for failing to protect the inhabitants against the destruction of property by fire.” Fowler v. Athens City Water Works Co., 83 Ga. 219, 9 S. E. 673; House v. Houston Water Works Co., 88 Texas, 233, (31 S. W. 179).
The question arose in Wisconsin in 1892, in the case of Britton v. Green Bay Water Works Company, 81 Wis. 48, (51 N. W. 84), and it was held that a water company under contract with a municipal corporation to furnish water for the extinguishment of fires, does not become liable to suit by a private citizen for loss of his property by fire owing to the negligence of the company in not [230]*230furnishing a sufficient supply of water. It is said in the opinion : "It seems to be impossible to find any sound legal principle on which the liability of the defendant to the plaintiff can be predicted.....Could the defendant have reasonably supposed that by this contract with the city, it was contracting with or incurring liability to each of its inhabitants and that it might be sued by each one indirectly and separately? . . . . Is it a hardship that the plaintiff cannot recover in such a case? So it is in case the city is sued for neglect of its duty in not furnishing the necessary machinery for putting out fires. It is not greater hardship in one case than in the other; the duty of furnishing water and using it to put out fires still remains in the city. That duty has not been, if it could be, transferred to the company. The company is bound only by its contract and liable to the city alone as the other contracting party.”
In 1894 the question came before the Supreme Court of Indiana in Fitch v. Seymour Water Company, 139 Indiana, 214, (37 N. E. 982), and upon demurrer to the complaint charging facts similar to those in Britton v. Water Co., 81 Wis. supra, it was held that the water company had undertaken no public duty which would make it liable to the plaintiff, and that the plaintiff had no privity in the contract of the city with the water company.
In the very recent and carefully considered case of Lovejoy v. Bessemer Water-Works Co., in the Supreme Court of Alabama, 41 South. Rep. 76, 1906, the court reached the same conclusion, citing eighteen decisions in support of it. The opinion there says : "The overwhelming weight of authority is against the right of the plaintiff to maintain this action. The reason why he may not do so is that there is a want of privity between him and the defendant which disables him from suing for a breach of the contract or for the breach of duty growing out of the contract. It is impossible at this late day to say anything new upon the subject, and it would be affectation to attempt any elaborate discussion of the question involved.”
"We recognize that the absence of a remedy by suit for damages for a failure by a water company to furnish water for fire purposes, according to its contract with a city, leaves the subject ‘in an [231]*231extremely unsatisfactory position,’ as stated in the note to Britton v. Waterworks Company, 29 Am. St. Rep. 856, 863, yet, as the learned annotator suggests, ‘thejonly security would seem to be in legislation or in the incorporation of some suitable provision in future contracts of this description, whenever the taxpayer desires to reserve a personal remedy against the water company.’ It is not the function of a court to make law to fit hard cases.”
See also Allen & C. Mfg. Co. v. Waterworks Co., 37 South, 950 (La.); Eaton v. Waterworks Co., 37 Nev. 546 (56 N. W. 201); Bush v. Artesian Water Co., 43 Pac. 69; Wilkison v. Light H. & W. Co., 28 South, 877 (Miss.); Ferris v. Water Co., 16 Nev. 44 (40 Am. Rep. 485).
In the Federal Courts the adjudications have been to the same effect.
In the recent case of Metropolitan Trust Co. v. Topeka Water Co., 132 Fed. Rep. 702, the court said: "The question of the liability of a water company to respond in damages to a resident of a city, the owner of property destroyed by fire, on account of the failure of the water company to fulfill its contract with the city in furnishing an adequate supply of water and a stipulated pressure for the extinguishment of fires, has many times received the consideration of the courts of last resort in this country, and the almost universal holding is that there is no such privity of contract between the individual citizen, though a taxpayer who contributes to the fund disbursed by the city in the payment of hydrant rentals, and the water company, as will authorize any recovery for damages so sustained. Boston Safe Deposit & Trust Co. v. Salem Water Co., (C. C.) 94 Fed. 238.”
On the other hand three cases are cited in support of the plaintiff's contention that such an action for negligence is maintainable in favor of an individual owner of property against a water company under contract with the municipality to. furnish a supply of water. The first case in which this doctrine is held is Paducah Lumber Co. v. Paducah Water Co., 89 Ky. 340, 12 S. W. 554. But it distinctly appears in the-opinion in that case that there was a private contract directly between the water company and the plaintiff lumber com[232]*232pany, and no cases are cited in the opinion, and the case itself is not an authority, to sustain the plaintiff’s contention at bar. Gorrell v. Greensboro Water Co., 124 N. C. 328, (32 S. E. 720), and Mugge v. Tampa Water Works Co., 42 South, 81, (Fla.) follow the. Paducah case in Kentucky, although the facts are materially different. It is sufficient to observe that the reasoning in those cases is not satisfactory..
These numerous expressions of judicial opinion have been so nearly unanimous, and the conclusions reached by so many courts of eminent respectability and authority have been so uniformly opposed to the maintenance of such actions by individual property owners, that the rule may properly be regarded as settled law, and while this court has never been unmindful of the flexibility and creative power of the law to meet the progressive developments of the age, it has never hastily or inconsiderately rejected principles established by sound reason or doctrines sanctioned by long experience.
. The proposition advanced by the plaintiffs would require water companies to assume, to some extent, the responsibility of insurers, and it does not satisfactorily appear that such a doctrine would be more in harmony with considerations of public policy, or more consonant with reason and justice, than the established rule. Ample opportunities are already afforded for all property owners, to obtain insurance against losses by fire, and the assumption of such risks by water companies, even in a modified degree, would result in double insurance and largely increased water rates. Furthermore, capital would not readily seek investments in enterprises involving a public service exposed to incalculable hazards and constant litigation. In the practical administration of the law the established rule has not, been found the cause of extraordinary hardships or the occasion for exceptional complaints.
The entry must accordingly be,
Exceptions overruled.
Demurrer sustained.
Declaration adjudged insufficient.