When what was thus inherently probable happened, and the property rights of adjacent riparian owners were invaded and destroyed, the municipality is liable in case for the wrong, which was thus negligently inflicted. Baltimore v. Merryman, 86 Md. 584, 590-594, 39 A. 98; Livezey v. Bel Air, 174 Md. 568, 199 A. 838; Taylor v. Baltimore, 130 Md. 133, 99 A. 900; Hitchins v. Frostburg, 68 Md. 100, 11 A. 826; Guest v. Church Hill, 90 Md. 689, 45 A. 882. See Baltimore v. Eagers, 167 Md. 128, 136, 173 A. 56. The preceding statement of facts is based upon the testimony which tended to support the plaintiff's case.
The question submitted by the appeal is not novel. It is whether a public utility corporation, under a duty to supply, without discrimination, its service to all persons applying therefor, may rightfully refuse to serve a person who acquired title to property from an owner served by the utility, unless and until the transferee pays all charges and arrearages due by the former owner to the corporation for service rendered before the transfer. 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. Dillon, Mun. Corp. (5th Ed.) sec. 1317; McQuillen, Mun. Corp. sec. 1946 n., secs. 1821, 1829; 51 C.J. 7; Merryman v. Baltimore, 153 Md. 419, 427, 138 A. 324. 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 than its governmental character (McQuillen, Mun. Corp. sec. 1946; 43 C.J. 420; Wagner v. Rock Island, 146 Ill. 139, 34 N.E. 545), and that is especially true where the service is supplied beyond the territorial limits of the municipality. Dillon, Mun. Corp. secs. 1299, 1300.
The appeal came to us from the sustaining of the city's demurrer, which we reversed. In at least three earlier cases — Merryman v. Baltimore, 153 Md. 419, 138 A. 324 (1927); Loan Corp. v. Baltimore, 175 Md. 676, 3 A.2d 747 (1939); and Lewis v. M. C.C. of Cumberland, 189 Md. 58, 54 A.2d 319 (1947) — we had dealt with other issues relating to the provision of utility service by a municipality, and we summarized in Bair some of what we had said in those cases. The more relevant point was our general conclusion that "a municipality cannot be required to impose a burden on its utility facilities or on the city itself by providing services to persons who are outside of its corporate limits and beyond its taxing powers."
At a time prior to the imposition of the Service Charge, certain of the Property Owners had obtained authorizations for sewer service, subject to conditions which were met, and to the payment of charges, which were paid. They argue that a contract was formed between them and the Commission, relying on Merryman v. Baltimore, 153 Md. 419, 427, 138 A. 324, 328 (1927) and Farmer v. Jamieson, 31 Md. App. 37, 354 A.2d 225 (1976). Assuming, arguendo, that such was the case, the contracts became incapable of being performed because of the intervention of the sewer moratorium, which was a valid exercise of the state's police power, Smoke Rise, Inc. v. Washington Suburban San. Com'n, supra, 400 F. Supp. at 1383.
mages incurred to the time of cancellation. As a consequence, municipalities and counties have been regularly subject to suit in contract actions, whether the contracts were made in performance of a governmental or proprietary function, as long as the execution of the contract was within the power of the governmental unit, Mayor City Council of Baltimore v. Landay, 258 Md. 568, 267 A.2d 156 (1970); City of Frederick v. Brosius Homes Corp., 247 Md. 88, 92, 230 A.2d 306, 308 (1967); Funger v. Mayor Council of Somerset, 244 Md. 141, 223 A.2d 168 (1966); Bair v. Mayor City Council of Westminster, 243 Md. 494, 221 A.2d 643 (1966); Mayor City Council of Baltimore v. Allied Contractors, Inc., 236 Md. 534, 204 A.2d 546 (1964); Mayor City Council of Baltimore v. Industrial Electronics, Inc., 230 Md. 224, 186 A.2d 469 (1962); Nelley v. Mayor City Council of Baltimore, 224 Md. 1, 166 A.2d 234 (1960); Gaver v. County Comm'rs of Frederick County, 175 Md. 639, 650, 3 A.2d 463, 467-68 (1939); Merryman v. Mayor City Council of Baltimore, 153 Md. 419, 138 A. 324 (1927); Christhilf v. Mayor City Council of Baltimore, 152 Md. 204, 136 A. 527 (1927); Mayor City Council of Baltimore v. Poe, 132 Md. 637, 104 A. 360 (1918); Mayor City Council of Baltimore v. Clark, 128 Md. 291, 97 A. 911 (1916); Mayor City Council of Baltimore v. Ault, 126 Md. 402, 94 A. 1044 (1915); Mayor City Council of Baltimore v. Talbott Co., 120 Md. 354, 87 A. 941 (1913); Mayor City Council of Baltimore v. Kinlein Co., 118 Md. 336, 84 A. 483 (1912); Tasker v. County Comm'rs of Garrett County, 82 Md. 150, 33 A. 407 (1895); Morgan v. Mayor City Council of Baltimore, 58 Md. 509 (1882); O'Brian Co. v. County Comm'rs of Baltimore County, 51 Md. 15 (1879); Ruppert v. Mayor City Council of Baltimore, 23 Md. 184 (1865); Mayor City Council of Baltimore v. Eschbach, 18 Md. 276 (1862). We conclude, therefore, that on the record before it the trial court was quite correct when it granted the State's motion raising a preliminary objection, but that the City's motion to dismiss shoul
"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 A. 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 A. 443 (1935), the rule in this State (regardless of what it may be elsewhere) 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 A. 324 (1927). [Emphasis supplied] "* * * 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.):
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 A. 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 A. 443 (1935), the rule in this State (regardless of what it may be elsewhere) 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 A. 324 (1927). See the annotation in 48 ALR 2d 1222 and the cases therein discussed, but also see City of Milwaukee v. P.S.C., 66 N.W.2d 716 (Wis.).
the per customer costs ( e.g., meter-reading, billing, collection, service pipe and meter expenses) of serving a large apartment house through one service line and one meter are no greater than the costs of serving one family through a separate meter in a multiple family dwelling; ( b) in many other cities only one minimum charge is made for an apartment house served by a single meter; and ( c) an apartment house is a business and is treated differently from all other businesses. In Home Owners' Loan Corporation v. Baltimore, 175 Md. 676, 680, 3 A.2d 747, 749, the court said: "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 reasonable range of its plant, equipment, lines or mains. Dillon on Mun. Corp., 5th Ed., sec. 1317; McQuillin on Mun. Corp., sec. 1946n, secs. 1821, 1829; 51 C.J. 7; Merryman v. Baltimore, 153 Md. 419, 427, 138 A. 324. 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 than its governmental character, ( McQuillin on Mun. Corp., sec. 1946; 43 C.J. 420; Wagner v. Rock Island, 146 Ill. 139, 34 N.E. 545, 21 L.R.A. 519), and that is especially true where the service is supplied beyond the territorial limits of the municipality. Dillon on Mun. Corp., secs. 1299, 1300.
The case of Taylor v. Baltimore, supra, is authority for the principle (which was the important question in the case) that a municipal corporation, though authorized by the Legislature to erect, operate, and maintain a sewerage disposal and filtration plant, may not create a nuisance and if, in the operation of such a plant, a nuisance is created, the city is responsible to those whose property is injured. If such an injury is occasioned, a suit at law may be maintained for the damages done. Baltimore v. Merryman, 86 Md. 584, 39 A. 98; Guest v. Church Hill, 90 Md. 689, 45 A. 882. And an injunction may in a proper case also be an appropriate remedy to abate such a nuisance and to prevent its recurrence. Caretti v. Building Co., supra; Neubauer v. Overlea Realty Co., supra; Woodyear v. Schaefer, supra; Baltimore v. Warren Mfg., Co., supra, and Baltimore v. Appold, supra.
It is conceded that if in the disposal of the garbage or in the operation of the reduction plant a nuisance is created whereby the property of the plaintiffs is injured or seriously affected, the defendant could be made to respond in damages for the injuries thus sustained. Baltimore v. Merryman, 86 Md. 584; Taylor v. M. C.C. of Baltimore, 130 Md. 133. We cannot hold, however, as this case is now presented, the appellees have brought themselves within the rules of law to justify an injunction to restrain a prospective or threatening nuisance, and unless such a case is presented a Court of Equity will not interfere.