finding no protected contractual interest because plaintiff had no contractual relationship with water department and “plaintiff makes no claim that a de facto understanding existed between her and the Village. Thus, there was no implied property right.”
How later courts described this case
- finding no protected contractual interest because plaintiff had no contractual relationship with water department and “plaintiff makes no claim that a de facto understanding existed between her and the Village. Thus, there was no implied property right.”
- where ________ _______ "plaintiff has neither a contractual nor a statutory basis to support her claim, . . . [she] was not deprived of a due process right by defendants [sic] termination of her water service"
- municipality's policy regarding reinstatement of water service not rationally related to any governmental interest and thus violated equal protection of property rights provided under local ordinance
Written by the judges who cited it.
Distinguished
Distinguished by DiMassimo v. City of Clearwater, 805 F.2d 1536 (1986)
Sterling is clearly inapplicable to the instant case because the judge found a pro-tectable interest i.e., the right to prevent the landlord from obtaining a constructive eviction by disconnecting the city water services.
The opinion
HARLINGTON WOOD, Jr., Circuit Judge,
concurring in part and dissenting in part.
This case arises from the fact that plaintiff was without water service for four days in a residence she was occupying under doubtful circumstances. It is seen from her complaint that she claimed to have a temporary oral lease, but this was disputed by the unwilling “landlord” who endeavored, with the assistance of two policemen, to eject her as soon as she occupied his premises. Plaintiff, however, held steadfast for several weeks. The landlord then notified the water department to terminate the existing water service to his premises. Since he was in arrears on his water bill, not surprisingly the water department complied with his request within a few days. The plaintiff in the meantime was the beneficiary of the water service for about three weeks without having made her own arrangement or having assumed any obligation to pay for it. Plaintiff was advised by a meter reader, making his final reading on a Friday prior to terminating the water at the owner’s request, to contact the water department to *1358 make her own arrangements. The next day, Saturday, a written notice to come to the water department was received at the premises. Plaintiff did nothing until after the water service was terminated on the following Monday. Then, however, she quickly responded, demanded immediate restoration of her service, and when the water department failed to comply within one day, filed this suit. The water department found itself faced with a property owner, himself in arrears, demanding the water be turned off, and plaintiff, a stranger to the water department and in a dispute with the owner, demanding it be turned on. It does not seem constitutionally impermissible for the water department, considering that plaintiff was not its only customer, to take a short time to try to solve the problem before resuming service to the premises. The plaintiff, in view of her own tardy contact with the water department, could not reasonably expect instant water service under those circumstances. Had plaintiff undertaken to resolve her own landlord-tenant problem before the shutoff of service, the water department would not now find itself undeservedly caught in the middle. In my judgment it appears from the complaint that the plaintiff was responsible for her own brief problem and does not deserve under any theory to benefit financially at the expense of the village and its officials. 1 After plaintiff got herself in this fix, what she needed was a little patience, not a federal lawsuit.
The facts of this particular case do not rise to the level of a constitutional question. I respectfully dissent from Part III of the majority opinion and would affirm the dismissal of the complaint.
. It is not a fact to be considered at this stage of the proceedings, but it appears in the record (not in the complaint) that plaintiff’s time without water would have been even shorter had the water department been able to locate her to advise her that the water was being turned on so that there would be no accidental flooding.