56 So. 450 | Miss. | 1911
delivered the opinion of the court.
It appears from this record that appellant was engaged in a .cleaning and drying business in the city of Meridian. Some time in November, 1909; appellant rented from one Barron a part of a storehouse, which Barron was then occupying as a shoe repair shop of some kind. When appellant rented a portion of this storehouse from Barron, it seems to have been understood that Barron was to furnish him with necessary water. Some time later the water supply was cut off by the city of Meridian, because Barron, the lessor, had failed to pay the water rentals. The city of Meridian owned and operated its OAvn system. of waterworks, and Barron and appellant were using different portions of the same room; each engaged in his OAvn enterprise and haMng no business association, other than the fact that appellant rented one portion of the room from Barron and was so renting and occupying that portion at the time the water was cut out. When the water was cut out because Barron failed to pay the rentals, appellant complained to. Barron first, and, failing to get him to pay up and continue his supply of water, which he claims it was necessary for him to have in order to continue his business,
It is manifest that this case should have gone to the jury. If a fraud was being perpetrated on the waterworks company, it was for the jury to say; and if appellant made the application for the water in good faith, it was the public duty of the waterworks company to let him have the water. Appellant was not in default in any way, and had just as much right to the use of the water in a half of a room occupied by him as if he had rented the entire building. Counsel for appellee seem
In the Burke case this court held that a municipality, owning and operating a waterworks plant, could not withhold water from a tenant because a previous occupant of' the premises had not paid for water furnished. It also held that any rule or municipal 'regulation purporting to justify any such conduct on the part of the municipality, was void. The principle controlling the Burke case and the case now on trial is exactly the same. The fraudulent use of the water is not to be presumed, and if there was no fraudulent use intended by appellant he had a right to the water. The city acted as its own judge in this matter in cutting out the water, and if it has judged incorrectly, and the application of Mr. Ginnings is in good faith, for the purpose of utilizing the water for himself, and not as a makeshift to shield Barron, he is entitled to the water, and he is entitled to damages for the wrongful refused of the city to let him have it, and to have this question submitted to the jury for their determination. Reversed and remanded.