Ward v. Birmingham Water Works Co. , 152 Ala. 285 ( 1907 )

DOWDELL, J.

The principal question in this case presented for our consideration is one that was considered and determined by this court in the case of Mayor and Aldermen of Birmingham v. Waterworks Company (Ala.) 42 South. 10, and that is whether or not the sprinkling of lawns is included in the use of water for domestic purposes under the contract of the waterworks company with the city. The question was then thoroughly considered, and decided against the contention of the appellant in this case. Notwithstanding the very able brief of counsel for appellant, we adhere to that decision. The decree of the chancellor, in sustaining the demurrer to the bill, was in accord with the ruling in the case above cited, and his decree must therefore be affirmed.

It is urged that the chancellor, in sustaining the demurrer, should not have dismissed the bill, but should have given the complainant an opportunity to amend the same. The answer to this is the decree was rendered in term time and the complainant did not offer to amend.— East v. East, 80 Ala. 199.

Affirmed.

Haralson, Simpson, and Anderson, JJ., concur. Tyson, C. J., and Denson and McClellan, JJ., dissent.