Carmichael v. City of Greenville , 112 Miss. 426 ( 1916 )

Pottee, J.,

delivered the opinion of the court.

The plaintiff in this case., B. B. Carmichael, brought .suit against the city of Greenville, and charged in his declaration that on and before the 22d day of March, 1909, the defendant municipality owned and operated a public waterworks system for hire and reward, and that in the year 1909 the said defendant purchased and equipped a public park situated about one-hálf mile south of the corporate limits of the city of Greenville, and that B. B. Carmichael, John K. Archer, B. B. McMahon., and Mrs. Sallie Wortham owned a large tract of land situated between the corporate limits of said city and said public park and known as Greenway Park, and that on the 22d and 23d days of March, 1909, the said Carmichael, Archer, McMahon, and Wortham conveyed to the defendant valuable property rights, and in consideration thereof the defendant agreed to lay a water main along the street leading’ from said city to said park and to furnish persons who should buy lots in Greenway addition water under such reasonable regulation as the defendant might impose. The plaintiff av.erred that thereafter the defendant accepted the said conveyances, and in consideration thereof laid its water mains under said street and permitted the plaintiff and others who purchased lots and erected residences on lots purchased in Greenway addition to connect tlieir premises with said mains and to receive therefrom a supply of water. Plaintiff alleged that, after he had purchased a lot in said Greenway addition and erected a residence thereon and connected his residence with said water main, he received a supply of water therefrom, paying* to said defendant the sum of sixteen dollars per annum, payable at the rate of four dollars per quarter. And he alleged that he paid his water rent to defendant for a period of about three years promptly, but through oversight forgot to pay the rent for the quarter beginning July 1, 1914, and ending September 30, 1914, in advance, and that on the 11th day of August, 1914, his water was cut off by defendant. And he alleged that thereafter, upon tender to defendant of four dollars for said quarter, and interest thereon, the defendant demanded the sum of one dollar as a penalty for having failed to pay the water rent promptly, and this regulation the plaintiff avers was an unreasonable regulation. In a second count plaintiff alleges that he tendered the defendant company, after it had cut off his water, the full amount of water rent, and in addition thereto two dollars which, according to the plaintiff “was unjustly, arbitrarily, and maliciously” demanded of plaintiff by said defendant, but that, notwithstanding this offer, defendant had notified the plaintiff that it would not accept any sum of money from him whatever and would not furnish him a supply of water under any terms or conditions' whatever. The suit is for ten thousand dollars damages. The agreement mentioned in plaintiff’s declaration between John K. Archer and others to the city council of Greenville is made an exhibit to the plaintiff’s declaration. The proof offered by plaintiff in this case tended to establish the allegations of the declaration and actual damages were shown in incidental expenditures and depreciation in the value of his property, occasioned by the refusal of the municipality to furnish him with water.

A motion, to exclude plaintiff’s testimony in this case was sustained upon the theory that in refusing to pay the water rent and in refusing to pay the damages demanded of plaintiff the contract to furnish him with water was terminated. The contract to furnish this water, however, is- a covenant running with the land,, and as long as Mr. Carmichael was the owner of the property in question he had a right while subscribing to reasonable regulations made by the city to be furnished with water. Because he was delitíquent in the payment of his water rent would not extinguish this right. It is, of course, a reasonable rule that, if a consumer is delinquent in the payment of his water rent, the same may be cut oil until the rent in arrears is paid, and any other reasonable rule assuring the city of getting pay for its water may be enforced. After Mr. Carmichael’s water had been cut off, upon a tender of the amount due, he had a right to have the water again connected.on such reasonable regulations as is required of other persons. The municipality cannot flatly refuse, because Mr. Carmichael was once delinquent, to connect him again with the waterworks when he tenders all he owes.

The regulation requiring the payment of an additional dollar because the plaintiff was delinquent in his water rent is unreasonable and void, and has been so held in this state. Ford v. Vicksburg Waterworks Co., 102 Miss. 717, 59 So. 880, 43 L. R. A. (N. S.) 63.

Reversed and remanded.