Ginnings v. Meridian Water Works Co.

Maxes; C. J., 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, [512] appellant undertook to supply himself with water to he used in the same room, and made application to the waterworks company to have the water turned on. It seems that a regulation of the waterworks company required an advance payment of two dollars. This amount was paid on the 7th day of January, 1910, and the waterworks company promised to have the water turned on at once. The water was not turned on, and, when appellant inquired in the office as to The reason, he was informed that the waterworks company would not turn on the wa- ' ter, because Mr. Barron, the lessor of that portion of the room occupied by appellant, was behind with his rentals. Appellant tried to explain that he was renting the back portion of the room, and wanted the water for himself; but the explanation was not heeded. The waterworks company would not turn the water on, and appellant was forced to move into another place at an increased rental. It is not shown that this application by appellant was not made in good faith and for the purpose of procuring the water for his own use, though it was attempted to be shown that the real purpose of appellant was to assist Barron in perpetrating a fraud on the waterworks company and getting the water turned on for the use and benefit of Barron, by using the name of appellant. The above facts must be taken as true, since they were testified to by appellant, and at the conclusion of the case the court gave a peremptory instruction for the waterworks company. 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 [513] to think that the principle of law declared by the case of Burke v. Water Valley, 87 Miss. 732, 40 South. 820, 112 Am. St. Rep. 468, has no application here, because appellant did not have the exclusive possession of the room. The rule of law does not rest on the question of whether or not a tenant has exclusive possession, but rests in the duty owing by this public service company, for such it is, whether owned and operated by the municipality or a private person or corporation, to furnish the service demanded to all persons, without making them suffer for the dereliction of some third party. 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.