Burke v. City of Water Valley, 40 So. 820

40 So. 820

Miss.

1905

Whitfield, O. J.,

delivered the opinion of the court.

Thе city of Water Valley owns its waterworks. Among the rules established by the city respecting the management and government of its waterworks system one was that the rentals *736of water should be charged to the оwner of the property, and not to the tenant; and a further rule was established that, if the water chаrge should not be paid, the water should be cut off, and no connection should be made until the delinquent charge was paid. The appellant rented a house within the water district, and tendered to the city authorities the amount due for water service, and requested that water be turned on, for his use, whiсh service was refused him, on the ground that there were unpaid charges against the premises due frоm a former tenant. The reasonableness of this last rule is the sole question in this case. The circuit judgе gave a peremptory charge to find for the defendant. Under the well-settled authorities on this subject this was manifestly erroneous. 'Among many authorities holding the true rule — that no such regulation can be еstablished, but is necessarily void for unreasonableness — we cite but one, directly in point and conclusive of the case: Turner v. Revere Water Company, 171 Mass., 329 (50 N. E. Rep., 634; 40 L. R. A., 657; 68 Am. St. Rep., 132), decided in May, 1898, and followed since by a multitude of authorities. The court in that case, speaking of a precisely similar rule, say: “It may be desirable that a water ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍company or a gas company should have an easy way of collecting its debts; but we see no reasоn why it should be enabled by the court to collect a debt from one who is not a party to the- contract, when it sells its сommodity on credit. The legislature may give such a company a lien, as it has given one to meсhanics. We have no doubt that pay may be demanded in advance, though whether the owner of thе house could not have the water shut off during the year, and recover for what he had not used, may be considered an oрen question.” See Rockland Water Co. v. Adams, 81 Me., 472 (21 Atl., 840; 30 Am. St. Rep., 368). In this case the owner of a house had paid bills which contained the words, “One year’s rent will be required in all cases.” ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍During a subsequent year he used the water for four months only, and was sued'fоr a year’s supply. It was held that *737the regulation was unreasonable and void, and that the plaintiff could not recover unless the defendant expressly assented to° the regulation, and that payment of former bills was not such assent. See, also, Wood v. Auburn, 87 Me., 287 (32 Atl., 906; 29 L. RA., 376), where there are some strong remarks in favor of the сonsumer.

We have no doubt that a water company may demand a deposit, as is required by the Boston Gaslight Company, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍where it does not know the consumer. This was held to be reasonable in the cаse of a gas company in Williams v. Mutual Gas Co., 52 Mich., 499 (18 N. W. Rep., 236; 50 Am. St. Rep., 266). See, also, Shepard v. Milwaukee Gaslight Co., 6 Wis., 539 (70 Am. Dec., 479); Id., 15 Wis., 318 (82 Am. Dec., 679). The right to shut off water or gas, if a bill is not paid, is undoubted, so far as the consumer is concerned. People v. Manhattan Gaslight Co., 45 Barb. (N. Y.), 136; McDaniel v. Springfield Waterworks Co., 48 Mo. App., 273; Sheward v. Citizens’ Water Co., 90 Cal., 635 (27 Pac. Rep., 439); Shiras v. Ewing, 48 Kan., 170 (29 Pac. Rep., 320). If gas is supplied to the owner of different houses under separate cоntracts, failure to pay the gas bill on one house does not authorize the cutting off of the gas from the other. Gaslight Co. v. Colliday, 25 Md., 1. See, also, Lloyd v. Washington Gaslight Co., 1 Mackey (D. C.), 331. In American Waterworks Co. v. State, 46 Neb., 194 (64 N. W. Rep., 711; 30 L. R. A., 447; 50 Am. St. Rep., 610), where a consumer of water who was in default,' after the water was turned off, tenderеd his arrears, but refused to pay one dollar, as required by regulation of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the company, for turning the water on, the court by mandamus compelled the company to turn the water on, holding the regulation to be unreasonable. See, also, Smith v. Birmingham Waterworks Co., 104 Ala., 315 (16 South. Rep., 123).

Water is a necessity; without it a house cannot, at the рresent time, be occupied in any of our cities. It must be obtained *738from a water company, and to compel a man to pay another’s debt in order to obtain it seems to us a result that ought not to be reached. Water is even a greater necessity than gas, for there are other mеans of lighting in use$ and yet in the case of gas there is a decision directly in point. In New Orleans Gaslight, etc., Co. v. Paulding, 12 Rob. (La.), 378, the plaintiff refused to supply the defendant with gas unless he paid an unpaid bill contracted by a former owner of the building. In order to obtain the gas, defendant promised to pay the bill. Plaintiff ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍turned on the gas, and afterwаrds sued the owner on his promise to pay the amount due from the former owner. The court held that thе promise was void, and that the plaintiff had no right to require such payment. In Sheffield Waterworks Co. v. Wilkinson, 4 C. P. Div., 410, 421, 422, it is said by Bramwell, L. J.: “Ply judgment does not рroceed upon this, that the appellants have a right to insist upon the communication with their mаin remaining.severed until their claim for rates due from the preceding occupier is satisfied. I do not think they have such right. That was, no doubt, the notion upon which they acted; but in my opinion it is not sustainable. The learned magistrate who has stated this case has argued it extremely well, and I agree with him in thinking that it was not the intention of the legislature that the undertakers should be at liberty to withhold the supply of water from the respondent’s premises until the ’arrears of some one else are paid. I also agree with him in thinking that ample provision is made for their security by enabling them to demand the rates in advance, without hаving what may be called something in the nature of a lien upon the property itself for bygone rates.”

The judgment is reversed and the cause remanded.