delivered the opinion oe the court.
Carrollton is a city of the fifth class, and as such, under section 3637, Ky. Stat., has the right to hold such real and personal property as may be necessary and proper for municipal purposes*; but it is denied the power to sell or convey any portion of any water front, but may rent it for a term not exceeding twenty years, except the wharf privileges, which shall not be leased for more than five years. As appears from the petition as amended, the city enjoys wharf privileges and owns a wharf boat, which it leased to W. E. Houghton; and whilst he was operating under the lease the appellants delivered to his care, on the wharf boat, a lot of furniture. It is averred that the “lessee, his servants and agents, acting as wharf masters under said lease to said Houghton, by their gross negligence, carelessness, and recklessness permitted and allowed said wharf boat to fill with water and sink, together with the aforesaid shipment of furniture, and by reason of the aforesaid negligence, carelessness, and recklessness said furniture became wet,” etc., and injured, to the damage of plaintiff in the sum of $800. Whilst the pleadings, at a place or two, refer to Houghton as agent or lessee, still the facts alleged in the petition with reference to the lease show that he was the lessee of the wharf privileges, and not the agent of the city. A pleading must be construed more strongly against the pleader. It does not appear from the petition what were the exact terms of the lease which the city gave Houghton. If the city had retained its wharf privileges and boat, and charged the
On November 19th, the following response to a petition for a rehearing was delivered by Judge Paynter:
With more earnestness than discrimination, counsel for appellee declares in the petition for rehearing that the opinion delivered in this case is in conflict with five cases heretofore decided by this court, to-wit: City of Louisville v. Com., 1 Duv., 295; Com. v. Makibben, 90 Ky., 384; [14 S. W. 372]; Roberts v. City of Louisville, 92 Ky., 95 [17 S. W., 216]; Clark v. Louisville Water Co., 90 Ky., 515 [14 S. W., 502]; City of Covington v. Com., 19 Ky. Law Rep., 105 [39 S. W., 836.] In the cases of City of Louisville v. Com., and Roberts v. City of Louisville this court recognized that a municipality may have two characters of property — one governmental or public; the other private or proprietary. In the Roberts case the court held that “wharf property” belonged to the latter class. The opinion in the case under consid