128 Ky. 336 | Ky. Ct. App. | 1908
Opinion of the Court by
Affirming.
Appellee, E. F. Rátterman, a resident citizen and taxpayer of the- city of Covington,, purchased of the Trumpet Milling C'onipany a lot and three-story brick building, situated on Fifth and Craig streets, in that city, and received of the vendor ,a deed conveying him the property with covenant of general warranty. The city of Covington owns a complete waterworks system from which residents of 'the city are furnished water at a charge' or rental authorized by ordinance and certain rules and regulations, .of the hoard of water commissioners, and at the time of the? sale and conveyance of the lot to appellee by the Trumpet Milling Company there was .due the .city of' Covingion. from that company or fprmer tenants of the premises .’$49.75 fox''water, furnished by. the pity and consumed .by.it or them. ThisJnde-btedness-was not knojwp, to .appellee when the property was sold vai*d cp^y^eíjiipii., 'its conveyance to him,,he. applied, to the’city'of Oov
The only question presented by the appeal is whether appellee, in order to obtain water from the city of Covington for use in Ms building in that city, should be compelled to pay water rents owing the city by his vendor or former occupants of the building for water furnished them for use therein before the property was purchased by and conveyed to appellee. Covington is a city of the second class,, and section 3141, Ky. Stats., 1903, applicable to cities of that class, provides: “In such cities of the second class as own a waterworks system, there shall be a board to be styled. ‘Commissioners of Waterworks.’ * * * Said commissioners shall control and manage the waterworks and water system of the city, subject to such regulations and limitations as the general .council may by ordinance provide.- * *. The attempted exercise of authority on the part of . the board of waterworks commissioners of which appellee complained was asserted under and by virtue of section 1063, “Hall’s. Ordinances of the City of Covington,” which'pro-, vides: “All waiter rents on the assessment plan are due
It is contended by appellants that the rule adopted by the water commissioners, viz., that, whenever there is a delinquent water bill against any property, the water will not again be turned on for the use of such property, even though the title shall have been conveyed to an innocent purchaser or possession of the property taken by a new tenant until the water rent in arrears and owing by the former owner or tenant shall have been paid, is permitted by the ordinance in question, and that it is a reasonable rule necessary to the maintenance of the city’s waterworks system. In other words, it is asserted that the water rent is a debt or demand against the building to which the water was furnished, for which reason a change of ownership or-in the possession of the property can hot inter
The claim for water rent asserted by appellants is •not on the footing of a lien for street or alley construction, which attaches to the realty bordering on the street or alley constructed. In such case the lien is expressly given by statute, and by the same authority may be enforced by a sale of the realty for such part of the cost of the street or alley improvement as may be apportioned to it. This is allowed because of the enhanced value given such property by the construction o'f the street or alley. But, in the absence of statutory authority to that effect, no such lien can be asserted by a city or its board of water commissioners against a lot or building whose owner or occupant fails to pay water rent, and, even if statutory authority were not wanting, ordinance 1063 gives no such lien. If the contention of appellants is sound, it would necessarily follow that every ■ delinquent water bill
For the foregoing reasons, we are clearly of opinion that appellant city of Covington had no legal-right to claim of appellee-or as against the property in'question the water rent in arrears, or to refuse to furnish him-water for-the use thereof!according to-the city ’s rulés and regulations, because of his:'failu-re to pay it.
The conclusions of the circuit court being in accord with those herein expressed, the judgment is affirmed.