City of Jackson v. Hart

78 So. 780 | Miss. | 1918

HoldeN, J.,

delivered the opinion of the court.

This suit was instituted by the city of Jackson under chapter 260, Laws of 1912, to enforce payment of fifty-three dollars and ten cents against the abutting property owner, John Hart, appellee, for cost of laying four lead water pipes connected with and laid from the city’s main water pipe in the street to the sidewalk of appellee by the city beneath the street pavement. The appeal is from a decree in favor of the abutting property .owner, John Hart.

The resolution passed by the city provided for ■the paving of the street upon which the property of appellee .abutted. The street was to be paved with “bitulithic” according to the plans and specifications on file in the office of the city clerk. The pavement was laid by the city in front of appellee’s property and he was assessed with six hundred, forty-one dollars and sixty-three cents for same, which he promptly paid. The city also laid four lead water pipes from its main pipe in the street to the curb or sidewalk in front of appellee s property, replacing an iron pipe which was then in use there.

We shall not pass upon the question as to whether the city had legal authority under chapter 260 of Laws of .1912, to make such improvements of its streets 'as laying water pipes in them and assessing the abutting property holders with the costs thereof, - because we see no difficulty in affirming the decree of the chancellor upon the ground that the ordinance passed by the appellant, city of Jackson, and the plans and specifications adopted for the proposed improvement, provided for paving of the street only, and did not provide or the laying of water pipes in the street. The ordinance, plans, and notice to pave the street did not contemplate, nor include, expressly or impliedly, the laying of water pipes under or in the pavement by the ■abutting property owner or the city.

There is an obvious difference between tbe paving of a street and tbe laying of connecting water pipes in it for nse of water patrons. Tbe two improvements or betterments are different in character, and it cannot be said, as a matter of fact or law, that tbe laying ■of water pipes by tbe city in its streets constitutes a paving of the streets. Section 5, chapter 260, Laws of 1912, provides that:

“In sncb case the board shall, by resolution, declare tbe improvement necessary. Tbe resolution shall describe tbe character of special improvement proposed.”

It is undoubtedly plain to tbe most casual observer ■that tbe ordinance and notice thereunder in this case did not contemplate tbe laying of the four water pipes by tbe city, but tbe paving of the street was all that was prescribed by tbe resolutions and notice adopted by tbe city of J ackson. Therefore the abutting property •owner cannot be held for tbe amount expended by tbe •city in laying tbe water pipes involved in this case.

The judgment of the lower court is affirmed.

Affirmed-