Opinion
No. 71-300
Decided June 13, 1972. Rehearing denied July 5, 1972. Certiorari denied August 28, 1972.
In action tried as declaratory judgment action, trial court found that water system owned and operated by plaintiff was entitled to legal status of a public utility. Defendant appealed.
Affirmed
1. PUBLIC UTILITIES — Water System — Operating Continuously — Before Original Act — Certificate — Not Necessary. Since the water system owned by plaintiff had been operating continuously from prior to the enactment of original Public Utilities Act, a certificate of public convenience and necessity was not required and plaintiff's failure to obtain such a certificate was not determinative of the system's status as a public utility.
2. Defined. To fall into the class of a public utility a business or enterprise must be impressed with a public interest and those engaged in the conduct thereof must hold themselves out as serving or ready to serve all members of the public who may require it, to the extent of their capacity, and the nature of the service must be such that all members of the public have an enforceable right to demand it.
Appeal from the District Court of Jefferson County, Honorable Roscoe Pile, Judge.
David J. Hahn, C. Thomas Bastien, for plaintiff-appellee.
Sonheim, Whitworth and Helm, Richard L. Whitworth, for defendant-appellant.
Plaintiff filed a complaint requesting damages for inverse condemnation or, in the alternative, for tortious interference with contractual relations. By stipulation, the case was tried as a suit for declaratory judgment with the sole issue being whether the water system owned and operated by plaintiff was entitled to the legal status of a public utility and, thus, protected from encroachment by the city, the trial court found in favor of plaintiff, and defendant brings this appeal. We affirm.
The trial court found that plaintiff owned a domestic water system, and further found:
". . . that plaintiff has held himself out as willing and ready to serve all members of the public to the extent of his capacity, and the public has an enforceable right to demand service from the plaintiff. The water system benefits the public and plaintiff has dedicated this system to the public. . . ."
Defendant contends that the evidence does not support the above findings and that the court erred in adjudging the system a public utility.
The Reid Water System, which plaintiff purchased along with his house in 1955, was in operation at least as early as 1909, serving an area near the City of Arvada. In 1954, just prior to plaintiff's purchase of the system, the Public Utilities Commission, by one of its associate engineers, advised Reid Water System customers that, if the city did not acquire the well which was the source of water for the system, the owner would either have to have financial assistance from the users or else would have to apply to the Commission for the right to abandon the service due to financial losses.
Shortly after plaintiff acquired the system, he met with his customers to inform them of his intent to discontinue the service. The customers objected to the Public Utilities Commission, and a Mr. Brown, on behalf of the Commission, informed plaintiff that, because of the hardship which would ensue, he could not leave 35 families without water. The users each contributed $25 to plaintiff, and the sum was used to improve the system. Plaintiff subsequently made further improvements and additions to the water system. He gained 18 customers during his ownership, one of which was an apartment house which produces half his revenue. Throughout the years, defendant city has taken certain customers and potential customers of the plaintiff, including a public school built in the area in 1956. Plaintiff has never refused service to anyone requesting it and has attempted to increase the number of his customers.
At one time, plaintiff established rules and regulations for the operation of the water system and sent a copy thereof to the Public Utilities Commission. He testified that he thought he was subject to some control by the Commission because he was contacted by it whenever he proposed a rate increase.
Just prior to the commencement of this action, the defendant announced its intent to construct a water line which would extend to an apartment house being served by plaintiff. Plaintiff attended a city council meeting and objected to the construction of the proposed line. When it was constructed, plaintiff brought this action.
[1] Defendant asserts that plaintiff's water system is not a public utility because the Public Utilities Commission has never issued a certificate of public convenience and necessity for the operation of the system. Since the Reid Water System has been operating continuously from 1909 (prior to the enactment of the original Public Utilities Act, Colo. Sess. Laws 1913, Ch. 127), a certificate of public convenience and necessity was not required. C.R.S. 1963, 115-5-1 and 115-5-2. Plaintiff's failure to obtain a certificate is not determinative of the system's status as a public utility.
A public utility is defined in C.R.S. 1963, 115-1-3, as:
". . . every common carrier, pipeline corporation, gas corporation, electrical corporation, telephone corporation, telegraph corporation, water corporation, person or municipality operating for the purpose of supplying the public for domestic, mechanical, or public uses, and every corporation, or person now or hereafter declared by law to be affected with a public interest, and each thereof, is hereby declared to be a public utility and to be subject to the jurisdiction, control, and regulation of the commission and to the provisions of articles 1 to 7 of this chapter. . . ."
[2] In determining what is a public utility, as opposed to a contract carrier, the court in City of Englewood v. City and County of Denver, 123 Colo. 290, 229 P.2d 667, applied the following test:
"We find little need to enter into a lengthy discussion of what is or what is not a public utility, because we would ultimately apply the almost universally accepted test, which summarized is, that to fall into the class of a public utility, a business or enterprise must be impressed with a public interest and that those engaged in the conduct thereof must hold themselves out as serving or ready to serve all members of the public, who may require it, to the extent of their capacity. The nature of the service must be such that all members of the public have an enforceable right to demand it."
Plaintiff has submitted evidence in support of the claimed dedication of his water system to public use. The finding of the trial court that plaintiff's water system is a public utility is supported by the evidence, and we are bound by its determination. Whatley v. Wood, 157 Colo. 552, 404 P.2d 537.
Defendant also urges that plaintiff failed to exhaust his administrative remedies. We will not consider this issue as it was not before the trial court in the motion for new trial. Platte Valley Elevators Co. v. Gebauer, 127 Colo. 356, 256 P.2d 903.
Judgment affirmed.
JUDGE ENOCH and JUDGE PIERCE concur.