Kimball v. City of Jackson , 118 Miss. 789 ( 1918 )

Smith C. J.,

delivered the opinion of the court.

Appellee exhibited its bill in the court below against appellant, setting forth by proper allegation liability to it by appellant for a portion of the expense incurred by the city in paving a street abutting certain property owned by appellant. Appellant answered this bill, which answer he afterwards amended so as to make it a cross-bill, and to this cross-bill a demurrer was interposed by appellee and sustained by the court, and an appeal granted to this court to settle the principles of the case.

The answer and cross-bill, among other things, sets forth the deed under which appellee holds a part of that part of the street abutting on the property here in question, which contains the following stipulation:

“It is distinctly understood that the strip of land above described and herein conveyed is to be accepted by the city of Jackson, and it is to become a part of Robinson street and the sidewalk thereof in said city, and the city obligates and binds itself to maintain the street thereon.”

Appellant’s contention is that this paragraph of the deed imposes upon appellee the expense of maintaining the street, and prevents it from imposing any burden therefor on the property conveyed to it by the deed.

The principal ground of appellant’s cross-bill seems to be, in the event the stipulation of the deed herein-before set forth should be held not to prevent appellee from charging appellant with the expense of paving the street, that appellee, in that event, is entitled to have the deed canceled, and possession of that portion of the street conveyed by it restored to him.

Assuming, for the sake of argument, that the stipulation in the deed that the property conveyed “is to become a part of Robinson street and the sidewalk thereof in said city, and the city obligates and binds itself to maintain the street thereon,” is a condition subsequent, for the breach of which the owner of the property may be entitled to have the deed canceled and the property restored to him, it nevertheless does not follow that he is relieved from paying his portion of the expense incurred by the city in maintaining the street. Under the law when the deed was executed, and now, funds with which to pay for the maintenance of the streets of a city can be raised only by taxation or local assessment, or they can be maintained by the labor thereon of persons liable thereto, and this stipulation of the deed must be construed in the light thereof, and when so done it necessarily follows that the obligation upon the city is simply to maintain the street in the manner in which, under the law, it must maintain all of its streets.

Affirmed and remanded.