Bair v. Mayor of Westminster

Hornby, J., delivered the opinion of the Court. When the demurrer of the City of Westminster to the amended declaration and petition for mandamus of Harvey B. Bair and Scott S. Bair, Jr., and their respective wives, seeking to compel the city to supply water to- the tract of land they own outside the city limits, was sustained without leave to amend, the petitioners appealed. The only question for us to decide now is whether the court erred in deciding the case on demurrer. The original petition for mandamus alleged in substance that the petitioners were the owners of land near the outskirts of Westminster; that they desired to use the land for residential development and to that end had requested the city to supply water service to the land; that the city is presently supplying water to a residence approximately one hundred and seventy-five feet from their land; and that the city arbitrarily, discriminatorily and without just cause or reason refused to supply the requested water.

The demurrer of the city was sustained with leave to amend. Within the time allowed, the petitioners filed an “amended declaration” in which, besides claiming mandamus as ancillary relief, they demanded $15,000 damages. In addition to repeating the allegations contained in the original petition for mandamus, the petitioners further alleged in substance that they are unable to use their land for residential development unless they can secure a supply of public water; that an agreement was entered into between themselves and the Maryland Water Works Company (subsequently purchased by the city) whereby the company agreed to extend its water mains to their property but that the city refused to honor the agreement even though the petitioners agreed to cooperate with the city in connection with the extension and installation of the water main; that in the operation of the water company the city is engaged in the business of supplying water both inside and outside its corporate ⁴⁹⁷ limits; and that the city has extended the water mains for other consumers outside the city but has refused to supply water to the property of the petitioners although it is within a reasonable distance of an existing water main maintained by the city. The demurrer of the city was again sustained, but this time the declaration and petition for mandamus was dismissed without leave to amend.

We think the lower court erred in so doing. While it has been held that a privately owned water company cannot be required to extend its system into an area it had not theretofore served when it is shown that it would be economically unsound for it to do so, Public Service Commission v. Brooklyn and Curtis Bay Light & Water Co., 122 Md. 612 , 90 Atl. 89 (1914), and that a municipality cannot be compelled to extend its water service to a newly annexed area until it is financially able to make the extension, Schriver v. M. & C. C. of Cumberland, 169 Md. 286 , 181 Atl. 443 (1935), the rule in this State (regardless of what it may be else where 1 ) is that where a municipality has undertaken to supply water to an area outside its corporate limits, it must furnish water impartially to all those reasonably within reach of its supply system. See Lewis v. M. & C. C. of Cumberland, 189 Md. 58 , 54 A. 2d 319 (1947); Home Owners’ Loan Corporation v. M. & C. C. of Baltimore, 175 Md. 676 , 3 A. 2d 747 (1939) and Merryman v. M. & C. C. of Baltimore, 153 Md. 419 , 138 Atl. 324 (1927). In Merryman , it was held that the agreement of the applicant to pay for making the connection and charges for the use of water and the acceptance of the application by the city created an implied contract to supply the water asked for within a reasonable time.

In the Home Owners’ Loan Corporation case, where the owner of property outside the city limits petitioned for a writ of mandamus to' compel the city to restore the water service which had been discontinued, it was said (at p. 680 of 175 Md.) : ⁴⁹⁸ “It is axiomatic that a public service corporation, private or municipal, is under a duty to furnish to all persons applying therefor the service which it offers without discrimination and at reasonable rates, where the service requested is within the reasonable range of its plant, equipment, lines or mains. * * * Where the service or utility is supplied by a municipality, it has been said that while the purpose must be public and the utility must be impressed with a public interest, nevertheless the municipality acts in its business or proprietary rather