Mayor of Cumberland v. Powles

Hammond, C. J. delivered the opinion of the Court. The City of Cumberland appeals from an order of the Circuit Court for Allegany County requiring it to furnish water in the suburb of LaVale beyond the City limits to a householder, many of whose neighbors it has long served. The Maryland law on the subject is fully set out in Bair v. City of Westminster, 243 Md. 494 , and Judge Getty found on the facts before him, permissibly and justifiably we think, that the controlling law required the City not to discriminate against the appellee. We adopt Judge Getty’s opinion as that of this Court in this appeal, as follows: “This is a Petition for a Writ of Mandamus ordering the Mayor and City Council of Cumberland to permit a water tap to the Petitioner herein for Lot No. 7 in Lucas Heights sub-division, LaVale, Maryland.

The case was submitted by counsel for the Petitioner and for the ⁵⁷⁶ Mayor and City Council of Cumberland on an agreed stipulation of facts. The pertinent provisions being as follows: “Under an agreement entered into between the Mayor and City Council of Cumberland and the LaVale Sanitary Commission dated January 9, 1950, the LaVale Sanitary Commission purchases water from the city of Cumberland’s water system for residents of LaVale. This constitutes the principal source of supply for La-Vale, the average daily consumption being 600,000 gallons. Water is presently being provided to 17 of the 22 lots in Lucas Heights sub-division. “Under the terms of the agreement, the LaVale Sanitary Commission has the right to sell and supply water unto its inhabitants subject to prepayment of a Fifty Dollar ($50.00) fee for each tap.

Paragraph 7 limits the right of the Commission to sell water for domestic use only, unless the city of Cumberland consents to other usage. The city has the right to lessen or abate altogether the supply of water furnished whenever, in the judgment of the city, it shall be necessary. This discretionary power is not to be exercised in an arbitrary or unreasonable manner. “The letter to the LaVale Sanitary Commission from the Commissioner of Water dated July 10, 1968, states that the only alternative to a third water supply for Cumberland is a reduction in the number of customers served. The decision of the Mayor and City Council to restrict any further water taps outside the corporate limits in the opinion of the Court, however, will not necessarily reduce the number of customers served.

The resolution adopted by the Mayor and City Council states that the water supply of the city of Cumberland is adequate to meet the current needs of the citizens of Cumberland, and the only alternative to constructing a third water supply is a halt in the increase of customers served by the system. This resolution gives the Commissioner of Water the right to carry out the prohibition in whatever ⁵⁷⁷ manner he deems necessary. This resolution is dated July 15, 1968, which is five (5) days after the notice from the city to the LaVale Sanitary Commission limiting the new water taps to nonresidents. “The Commissioner of Water testified that subsequent to the letter of July 10, 1968, to the LaVale Sanitary Commission, ten water taps were granted to residents outside the city limits of Cumberland. These were characterized as special exceptions.

Several involved permits that had been issued prior to July 15, 1968, two cases where drilled wells did not work, several where outside taps were paid for, but not installed before July 15, 1968, and several hardship conditions of contamination of existing water supply. “The average daily consumption of water produced by the Cumberland system was 11,769,000 gallons in 1956 and was 13,078,000 gallons in 1968. 69.5% of the water produced is used for industrial purposes. The capacity of Lake Gordon is 1.4 billion gallons and the capacity of Lake Koon is 2.43 billion making a total capacity of 3.83 billion gallons of water. On May 1 of each year during the past 12 years, the water has flowed over the spillway of each of these two impoundments. On July 15, 1968, when the Order was issued to curtail outside taps, there was a 276 day supply of water on hand.

For the week ending February 10, 1969, there was a 179 day supply. The City Engineer attributes the difference to the lack of rain and not increased consumption. “In 1966 Whitman, Requardt and Associates prepared an engineering study for the Mayor and City Council of Cumberland concerned with developing a water service area for the city of Cumberland.