Thompson v. City of Winona

51 So. 129, 96 Miss. 591

• Court: Mississippi Supreme Court
• Decided: March 15, 1910
• Status: Published

Opinion

Mates, I.,

delivered the opinion of the court.

The declaration states a perfect cause of action against the •city, and the demurrer was improperly sustained. (It made no difference to whom the sewerage system belonged. The thing •causing the damage complained of was the act of the city in «ompelling its citizens to connect with same, thereby causing the filth of tbe city to be poured upon the plaintiff’s property to bis great damage. It may be true that there is a joint liability, but that question is not now in this ease; nor should it have had any influence in determining whether or not the demurrer should have been sustained or overruled.

The sewerage system, as such, without connection therewith being made by the citizens of the municipality, was harmless. It became harmful only when the city acted in the matter, and adopted it as its vehicle to carry away the filth of the city and empty it upon the property of the appellant. When the city did this, the system became as much its own system of sewerage, in so far as to malee the city liable for the damage caused by its adoption, as it would have' been had it actually owned it. There-can be no taking or damaging of property for public use, under section 17 of the Constitution of 1890, without due compensation to the owner, and in volume 6 of the American and English Annotated Cases in footnote to be found on page 177, this character of case is said to fall within the provision. See, also,. Smith v. City of Sedalia, 152 Mo. 283, 53 S. W. 907, 48 L. R. A. 711.

The rules of law applying to independent contractors have no-application here. No damage is caused or complained of by reason of the construction of this sewerage system by the owners, under the franchise given them by the municipality. If a citizen could be thus damaged by the act of the municipality in using the sewerage to his detriment, the law would be inadequate in its protection of property rights. On page 177, 6 Am. & Eng. Ann. Cas., in the note, will be found a vast number of authorities on this subject. We have examined the cases cited by appellee; but it is our judgment that none of them sustain their contention under the facts here considered.

Reversed and remanded.