Gaulkin, Lewis and Labrecque. The opinion of the court was delivered by Lewis, J.A.D.
In the pending proceeding by plaintiff Berkeley Water Co., Inc. (water company) against defendant Township of Berkeley (township) for the collection of $18,500 on alleged book account obligations, the Law Division entered summary judgment in favor of defendant on its cross-motion.
Plaintiff on appeal to this court urges in substance: (a) the utility franchise it obtained constituted a contractual obligation by the township to accept and pay for the fire protection services made available to it; (b) the
township and water company are mutually obliged to furnish fire protection to the community at the rates approved by the Board of Public Utility Commissioners; (c) the use of the water company's facilities by a local fire department in certain emergent circumstances evidenced the subsistence of the alleged contract; and (d) the trial court erred in taking judicial notice that fire districts and fire commissioners do exist in municipalities.
We find no merit to those arguments and conclude that the record before the trial court did not disclose fact issues which warranted a plenary trial.
The township, by ordinance adopted August 13, 1959 and pursuant to R.S. 48:19-17, granted its consent to the water company to lay pipes and conduits beneath the surface of certain "public roads" and to locate "water hydrants on and along such public roads * * * at such times and in such places as shall be necessary and proper." The franchised territory encompassed approximately 10% of the predominately rural 44 square miles comprising the Township of Berkeley.
The validity of that franchise was contingent upon the approval of the Board of Public Utility Commissioners (Board) as prescribed by R.S. 48:2-14, which approval apparently was obtained.
On February 8, 1961 the water company filed with the Board its "Initial Tariff for Water Service." There were no objections to the suggested rates for private-domestic users, but the township appeared at the public hearing and protested the water company's proposal to charge $25 per year for each fire hydrant, plus an annual $.03 "inch-foot" pipe charge, i.e., an assessment based on diameter and lineal footage of laid pipe. The schedule of rates received Board approval on July 1, 1961.
It is significant that the Board, in accepting and approving the proffered rate schedule, specifically observed, "The filing of a rate for fire protection service does not, per se, oblige the municipality to contract for such service but
merely establishes the rate for such service if the municipality elects to contract for it."
On July 13, 1961 the township committee formally considered the water company's request that its fire protection service be accepted, and, by resolution of that date, the committee resolved to "reluctantly refuse the Berkeley Water Company's fire protection" if it insisted upon the imposition of a "pipe tax charge." The committee indicated, however, a willingness to consider the payment of ...