Summary
In Gwin v. City of Greenwood, 150 Miss. 656, 115 So. 890 (1928), it was held that, where the owner of a subdivision outside of the city limits dedicated the streets but reserved the exclusive right to operate water and sewer lines thereon, and later the city extended its boundaries to include this area, the city had no right to enjoin Gwin from interfering with its extension of water mains.
Summary of this case from Stegall v. City of JacksonOpinion
No. 26768.
February 20, 1928. Suggestion of Error Overruled April 2, 1928.
1. DEDICATION. Owner may cut rural tract into lots, with streets, avenues, and alleys, and reserve right to operate public utilities; generally, one dividing land, and dedicating streets, avenues, and alleys, may prescribe restrictions and limitation on use thereof.
It is permissible for an owner of land in a rural section to cut same up into lots, with streets, avenues, and alleys, and reserve to himself the right to operate utilities for furnishing water, lights, sewerage, and similar things. In general, the dedicator may prescribe restrictions and limitations on the use of the land embraced in such avenues, streets, and alleys.
2. EMINENT DOMAIN. Municipal corporations. Municipality, taking in platted rural section, acquires streets, alleys, and avenues, burdened with reservations contained in maps and deeds; municipality, taking in platted territory, may condemn rights reserved in streets and alleys by paying just compensation ( Constitution 1890, section 17).
Where an owner of property in a rural section has mapped, platted, and sold lots therein as indicated in the preceding syllabus, and, afterwards, a municipality extends its limits so as to take in such platted rural section, it will acquire such streets, alleys, and avenues, cum onere, burdened with the reservations contained in the maps, deeds, etc.; but it may proceed to condemn and acquire same by paying just compensation therefor under section 17 of the Constitution 1890.
Appeal from chancery court of Leflore county; HON. HARVEY McGEHEE, Chancellor.
Chapman, Moody Johnson, S.L. Gwin and S. Rosenthal, for appellants.
If, on the date of the annexation ordinance, the town of North Greenwood was an existing municipality, then that ordinance, in so far as it attempts to annex any part of that municipality, is void for the reason that all, or any part, of the territory of an existing municipality cannot be included. The jurisdiction of the subject-matter is wanting. The annexation ordinance in so far as it attempts to annex unincorporated territory is void for the reason that all unincorporated territory embraced in the ordinance was not adjacent to the city of Greenwood. That is, no part of it was adjacent. The entire corporate territory of North Greenwood lies between the unincorporated territory and the city of Greenwood. Sections 5797 and 5809, Hemingway's Code. Candsi v. Seminary, 95 Miss. 315, 48 So. 908; Fabric Hose Company v. Vicksburg, 77 So. 911. If it be conceded that the ordinance is valid, in so far as the annexation is concerned, the question still arises, whose rights, if any, did the city acquire and in and to what property did it acquire such rights?
The offer to dedicate is evidenced by the map of the boulevard addition to the town of North Greenwood. To ascertain what was offered, and the extent of it, reference must be made to it and not elsewhere. The map discloses that: "A continuous strip of land twenty-four feet in width along the center of Grand boulevard and Park avenue, embracing all parkways and the land lying between the lines thereof extended at street intersections, is reserved the entire length by the said E.R. McShane, W.T. Loggins and S.L. Gwin, herein designated as the owners."
This continuous strip of land, twenty-four feet in width, which by reference to the map, is accurately described, is reserved by the owners from what? From the offer to dedicate, of course. But, if it be preferred to interpret the map as a dedication, then this strip is reserved by the then owners from the dedication. In other words, the then owners reserved unto themselves from the offer or, if preferred, from the dedication, this strip of land. In short they did not convey or offer to convey, or grant an easement or offer to grant an easement over this particular strip of land. If not, then in whom, but the then owners, did the unqualified fee-simple title to this strip of land remain? This, it is submitted, is too evident to need further argument for the reason that it is not a right in the land, but the land itself that was reserved. They had this title to begin with and it is only by their act that it can be claimed that that title was divested.
The then owners reserved unto themselves this particular strip of land, "for shade trees and ornamental purposes, for car tracks, for water, sewer, gas mains and pipes, telephone and electric light poles and wires and such other utilities public or private, as the said owners may at any time deem proper." Said strip of land was not set apart for such uses, but on the other hand was reserved unto the owners for such uses. As the owners reserved unto themselves the land, who, other than they, could complain because they did not devote it to the particular uses named, or because they might devote it to other uses. Whether use to which it might or might not be devoted is one which would affect the rights of other persons depends on the character of the particular use. The ownership of the land includes the right of user, and that right is more universal than the particular use. The question, presented and discussed, is not a new question. The authorities, which we have been able to find, and we have found none to the contrary, recognize and adjudicate the right of the owner to reserve a strip of land down the center or along the side of a street for his uses, even though the street itself is expressly dedicated. 18 C.J. 70-71, sec. 63; French v. New Orleans, etc., 2 La. Ann. 80; LeNeve v. Mile End Old Town, 92 E.C.S. 1054, 120 Reprint 392; Bartley v. Peoria, etc., 100 N.E. (Ill.) 494.
The effect of the decree is to deprive the appellants of the water mains and sewers, which, at a great expense, were constructed prior to the sale of any of the lots shown on the map. The subdivision, evidenced by the map, was designed and laid out outside of and not connected with a municipality — as an exclusive residential district. To make it suitable for that purpose, streets were laid out and graded, sewers and catch basins for sanitary and drainage purposes were constructed, and water and water mains provided for, for all of which the then owners expended in excess of one hundred thousand dollars. The proposed exclusive residential district, evidenced by this map, was, as stated, not in or connected with a municipality. If so, then by whom would these improvements be made, or, when made, maintained? The map was not made and lots sold and thereafter the improvements made. To the contrary, the latter preceded the former. Who, other than the then owners and those who purchased lots, were benefited by, and interested in the making, maintenance and extension, when necessary, of the improvements? As the improvements, etc., were necessary why could not the then owners agree, with each purchaser of a lot or lots, that the actual possession of the streets and the improvements thereon, should be delivered to the purchasers jointly and maintained and extended by them? If such an agreement were made, could the county, the town of North Greenwood, or "the general public" complain? Only those, then interested, would be the then owners on the one side and the purchasers of lots on the other. They, by virtue of such a contract, only would have rights and corresponding obligations. If such a contract could be legally made, then why could not the then owners agree with each purchaser of a lot or lots that they, the then owners, should remain in actual possession and maintain and extend the improvements. This was what was actually done. The record does not present such a case or even a case where the streets, prior to the contract, were dedicated as public highways. An agreement with reference to streets, dedicated as public highways to the public, was studiously avoided. It is conceded that the city of Greenwood could lawfully extend its corporate limits, and, if it had jurisdiction to do so and did take in this particular land, it is conceded that it could lawfully condemn the streets shown on the map, as public highways, and, when this was done, the exclusive privileges growing out of the contract between the then owners and purchasers would cease. But, in so doing, compensation must be first made to the appellants for the damages they sustained thereby, and the procedure, prescribed by law for that purpose, must be followed. The procedure, as a consequence of which the decree appealed from resulted, is not such a procedure. See 18 C.J. 96, n. 19.
R.C. McBee, Alfred Stoner and A.H. Bell, for appellee.
On March 10, 1910, W.T. Loggins, S.L. Gwin and E.R. McShane were the owners of the lands lying in the Boulevard addition. These lands were platted and subdivided and a map thereof filed in the office of the chancery clerk, in accordance with section 3394, Hemingway's Code of 1927. The statutory scheme set forth in the Code section immediately following that just quoted described just what is to be done by the proprietor in order to make his map an official map and in order to comply with the statute to make his addition official. The statutory scheme does not stop there but provides that a penalty be imposed on any person who shall sell lots in any such addition "before the plat or map thereof shall be recorded." A further Code section provides how the owner of the land may have his recorded map or plat vacated, requiring him to file a petition in the chancery court for such purpose. The lands in controversy lie partly within and mostly without the then village of North Greenwood. The statutory scheme was followed by the then proprietors so that the map under consideration was filed in strict accordance therewith. The owners were then desiring to change their lands, part swamp, and part farm lands, into urban property to facilitate the sale thereof as such. The consequences of such action by the owners and effect can be exactly determined. There are two facts in the record which control. The first is that the boulevards, streets, avenues, and alleys were used from that time by the general public in passing over them. The second fact is that on the 11th day of April, 1910, at four o'clock P.M., a deed from the owners to W.M. Hamner, conveying Lots 4, 5, and 6 in Block 33 of the Boulevard addition to North Greenwood in Leflore county, Mississippi, as shown by the map of said Boulevard addition to North Greenwood, recorded in Book 2, at page 19, of the record of Maps of said county was filed in the office of the chancery clerk. Record, pages 219-224. Subsequently thereto, many deeds were made to many persons, conveying a part of said property. We are thus able to establish the moment the boulevards, streets, avenues and alleys became highways, the moment the first deed was executed, and certainly the moment it was filed, W.M. Hamner, the purchaser of the lot, not only acquired the property conveyed to him by his deed, but he also acquired the right for himself and the general public to travel over and along every boulevard, avenue street and alley located therein. Whether the dedication of the boulevards, avenues, streets and alleys was a statutory or a common-law dedication, the effect is the same. 18 C.J. 121; Sanford v. Mayor and Aldermen of Meridian, 52 Miss. 383; Whitworth v. Berry, 69 Miss. 982, 12 So. 146; 19 C.J. 58; Witherspoon v. City of Meridian, 69 Miss. 288, 13 So. 843.
The right to adopt to public use land that has been dedicated for a highway does not in all cases depend upon an acceptance by the local authorities. Harrison v. Seal, 66 Miss. 121, 5 So. 622, 14 Am. St. Rep. 545, 3 L.R.A. 659.
The property in the Boulevard addition to North Greenwood, was, as we have seen, originally country property. The purposes of its proprietors in platting and improving it was to sell it as city property. Any secret intention they may have had could have no effect whatsoever. They are bound under the law by their deeds and the map which they filed. Upon the extension of the city limits, what had been roads, we respectfully submit, became streets. Briel v. City of Natchez, 48 Miss. 423-436; Blocker v. State, 72 Miss. 720. See, also, Railroad Co. v. State, 71 Miss. 253; Burchfield v. Town of Ruleville, 111 So. 565; K.C. Lbr. Co. v. Moss, 119 Miss. 185, 90 So. 638.
The city's right to maintain this suit. See, People v. Holloday, 93 Calif. 241, 27 Am. St. Rep. 186; City of Demopolis v. Webb, 87 Ala. 659, 6 So. 408; Canton v. Cotton Warehouse Co., 84 Miss. 268-295.
All the authorities agree that the use of the street for the purpose of laying watermains therein does not impose an additional servitude on the abutting owners, nor entitled them to additional compensation. 2 Abbott, Mun. Corp., 1165; Baltimore County Water E. Co. v. Dubreuil, 66 A. 439; 11 L.R.A. (N.S.) 684; Gulf Coast Co. v. Bowers, 80 Miss. 582; Hazlehurst v. Mays, 84 Miss. 7; 2 Dillon on Mun. Corp., sec. 697; 1 Elliott on Roads and Streets (4 Ed.), 21, 22.
In the present case, a statutory dedication was made, and the original proprietors are conclusively presumed to have known its effect. Colegrave Water Co. v. Hollywood, 13 L.R.A. (N.S.) 904.
Is the ordinance of December 5, 1922, annexing the Boulevard addition, valid? There is no question that in abolishing the town of North Greenwood, all the requirements of law were followed as contained in section 5807, Hemingway's Code 1917. The argument in appellants' brief is based upon the theory that this annexation was void, not because this statute was not complied with, for that is taken for granted, but the contention of appellants is that that statute was not the law on December 5, 1922, and is not now. The argument is that since the statute under which and in compliance with which the proclamation of the Governor was issued is void, that therefore the council of the city of Greenwood was without jurisdiction to make the extension of December 5, 1922.
The contention comes to this: If the village of North Greenwood was abolished on that date, the land annexed to the city of Greenwood was all unincorporated land and the annexation ordinance was proper.
On the other hand, the argument is that if the statute, section 5807, Hemingway's Code 1917, had been repealed, then the proclamation of the Governor was void and the annexation was void. With this entire argument, we disagree in toto. Booze v. Creswell, 117 Miss. 795, 78 So. 770; Lang v. Board of Supervisors of Harrison County, 114 Miss. 341, 75 So. 126; 36 Cyc. 1056; State v. Jackson, 119 Miss. 727, 81 So. 1; Mobile Ohio R.R. Co. v. Weiner, 49 Miss. 725; Casey v. Stovall, 50 Miss. 396; Coker v. Wilkinson, 142 Miss. 1, 106 So. 886; Gilmore Puckett Grocery Co. v. J. Lindsey Wells Co., 103 Miss. 468, 60 So. 580; Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703; Ascher v. Moyse, 101 Miss. 36.
Appellants' brief assumes that the attack made by him on the ordinances is not a collateral attack, because he says that the city of Greenwood deraigned its title solely by virtue of the annexation ordinance, and therefore presents the question of its validity for the decision of this court. If we grant for the sake of argument that this is correct, there is nothing in complainant's bill or proof, including the annexation ordinance to show that any of the territory annexed ever was a part of North Greenwood, nor does it there appear that the municipality of North Greenwood ever existed. Topeka v. Dwyer, 70 Kan. 244, 3 A. E. Ann. Cas. 239; 43 C.J. 139; Matters of Short, 47 Kan. 250.
Argued orally by C.C. Moody, for appellants, and Alfred Stoner and R.C. McBee, for appellee.
This is an appeal from a decree of the chancery court of Leflore county enjoining the appellants from interfering with the use of certain streets by the city of Greenwood for street purposes, including the extension of the water mains and the water works system of the city of Greenwood, and canceling certain reservations shown on map filed by the owners of certain lands laid off as subdivisions known as Boulevard addition to North Greenwood. The city of Greenwood, prior to December 5, 1922, was located on the south bank of the Yazoo river. On that date an ordinance was adopted by the city authorities extending the city limits so as to include a territory lying on the north side of the river, including said Boulevard addition.
On March 10, 1910, W.T. Loggins, S.L. Gwin, and E.E. McShane were the owners of the lands now known as Boulevard addition, which lands were then platted and subdivided according to the statute providing therefor, and a map filed in the office of the chancery clerk showing this subdivision, and a copy thereof was filed with the bill of complaint. On the face of the map appears the following:
"A continuous strip of land twenty-four feet in width along the center of Grand boulevard and Park avenue embracing all parkways and the land lying between the lines thereof, extended at street intersections, is reserved the entire length by the said E.R. McShane, W.T. Loggins, and S.L. Gwin, herein designated as the owners, for shade trees and ornamental purposes, for car tracks, water, sewer, and gas mains and pipes, telephone and electric light poles and wires, and such other utilities, public or private, as the said owners may at any time deem proper. Wherever practicable, the overhead improvements, including telephone, telegraph, and electric light lines, shall be constructed through the alleys, and, where it may be necessary to construct the same through the boulevard, avenues, or streets, the right is reserved in the said owners to select and determine the location in such boulevard, avenues, and streets of the poles used therefor. The exclusive right to construct, maintain, and operate water, sewerage, electric light, gas, and street car lines and systems in all of the alleys, streets, avenues, and boulevard is reserved in the said owners."
It was alleged in the bill of complaint that the reservations above mentioned are inconsistent with the rights of the said city in the control and use, repair, and improvement of said boulevard, avenues, streets, and alleys, and inconsistent with the use of said boulevard, streets, avenues, and alleys, as such, and that said alleged reservations attempt to take the jurisdiction and control of said city over its boulevard, avenues, streets, and alleys, as vested by law, and are absolutely void and of no effect so far as the complainant is concerned, and that they cast a cloud upon complainant's title to said boulevard, avenues, alleys, and streets now embraced in said city. It was further alleged that, in order to supply the inhabitants with water for drinking, sanitary purposes, and fire protection, and in order to make other improvements, it is necessary that the water mains of the city, the said city owning and operating an electric light and water plant, be laid under and along the said boulevard, streets, avenues, and alleys in said addition, and that said S.L. Gwin and A.M. Hobbs now claim that the said city has no right to make such extensions of their mains and other improvements, on account of said attempted reservations, and that the said Gwin and Hobbs now hinder the said city in the free use and control of said boulevard, etc., and that said attempted reservations now cast a cloud on the title of said city in said boulevard, etc., and amount to a nuisance, etc. The bill prayed for an injunction restraining the defendants from interfering with the free use of said streets, boulevard, avenues, and alleys by said city for public purposes; that the said alleged reservations, as shown on the face of the map of said addition above referred to, be declared void and of no effect, and be canceled as far as the free use of said boulevard, streets, avenues, and alleys by said city for public use, including the extension of said water mains, is concerned, and that all of said reservations be declared to be obstructions amounting to a public nuisance, and as such be abated, and then prays for general relief.
The bill also set out the ordinances adopted by the city of Greenwood extending its limits, and the proceedings in connection therewith.
The defendants filed an answer challenging the right of the city to take over the avenues, boulevard, streets, and alleys without paying the owners thereof the value of the property reserved. It also challenged the legality of the ordinances extending the limits of the city for various reasons. It further set forth that it had developed a system of waterworks and sewerage, and other utilities, at great expense; that it had bored artesian wells to supply the inhabitants of said addition with water, and had gone to great expense and established valuable property under said reservations. They made their answer a cross-bill, and demanded damages for the unlawful taking of their property.
There are various allegations challenging the legality of the ordinances, but we find it unnecessary to discuss the legality of the ordinances extending the city limits, as set forth in the pleadings and proof, and shall only consider the question as to whether the city, in extending its limits, included Boulevard addition, without the right to the free use of the streets through same for the purposes set forth in the bill, or whether they acquired same cum onere, burdened with the rights reserved in the original map and deeds made in laying off said addition and selling the property abutting on said streets. It appears from the record that Boulevard addition was not within the municipal limits of Greenwood or any municipality, when the addition was laid off and the contracts made, and the utilities established and maintained by the defendants were erected and put into operation. A large number of homes had been erected in said addition on said streets and alleys and avenues, and said streets, avenues, and alleys were the means of ingress and egress for the owners of these homes. The Yazoo river, between the original city of Greenwood and this addition is crossed by means of a bridge. A street runs along that river on the opposite side, and the boulevard intersects that street, and leads due north to the Tallahatchie river, a mile or more away, and leads into one of the main highways of Leflore county. The travel from Greenwood uses this route in reaching the northern part of the county; thence on to Charleston and Memphis. The lots that face the boulevard have a frontage of one hundred feet and run back two hundred feet. There are, approximately, fifty of these lots, besides a much larger number of lots located on side streets and alleys. Originally, this Boulevard addition was a plantation, and the ground was cut up with deep sloughs, which had been filled up to a large extent by the parties establishing said addition.
It will be seen from this statement that, at the time Boulevard addition, was established it was rural territory, not lying within the limits of any municipality; and, in this opinion, we are not called upon to decide what effect the reservation made by the original owners in laying off said addition would have amounted to, had said addition been within the corporate limits of an existing municipality. We deal here with the situation of a rural development, wherein the land was platted and laid off into lots, and these lots sold to persons with reservations contained in their deeds, as above set out.
In 9 Amer. Enc. Encyc. Law (2 Ed.), p. 75, it is stated, under the head of Partial and Limited Dedications — May Annex conditions, that:
"While it is presumed, in the absence of proof to the contrary, that the public is to have the unlimited and unrestricted use of the land dedicated, for all public purposes consistent with the objects of the dedication, yet there may be a dedication in which the grantor reserves certain rights and privileges for himself, and, when such a dedication is accepted, the public takes it subject to burdens and conditions."
In 8 R.C.L., p. 909, section 34, under the head of Rights of Dedicator or Proprietor, it is stated that:
"The dedicator may prescribe the terms, restrictions, and limitations on which the land is given; and, where the dedication does not operate to divest the owner of his title, he may use the land in any way not inconsistent with the enjoyment of the public rights therein, and is entitled to all the profits thereof not necessarily incident and appurtenant to the public user. In such case he has full dominion and control over the land subject to the easement in the public, and may bring an action for trespass against any person who infringes on the ordinary proprietary rights of the owner of the soil, in a manner not in the use of the easement, and subject to the same restrictions, may also maintain ejectment for the land. But he has no right to exercise his ownership in such a way as to defeat the uses for which the dedication was made."
In 18 C.J., p. 69, section 62, it is stated:
"In dedicating land to the public, the dedicator may impose such reasonable conditions, restrictions and limitations as he may see fit, provided they are not inconsistent with the dedication, and will not defeat its operation, and while the public may refuse to accept what is thus offered, yet in order to vest the easement in the dedicatee, the terms of the dedication must be strictly complied with. The acceptance of a dedication in violation of the conditions of the grant is a nullity, if objection is seasonably made. Nevertheless, the dedicator may waive any conditions, restrictions or limitations imposed by him, and if he does so he cannot afterward complain, especially if the acceptor of the dedication has spent money and labor upon it in fitting it for its purpose. If he desires to avoid his gift for noncompliance with the conditions or nonobservance of the restrictions imposed by him, he must move promptly."
"In applying the general rule that the dedicator may impose reasonable conditions and restrictions in making a dedication of his property, it is, of course, competent for him to limit the use of his property to a specified use or purpose. He may dedicate his land subject to private easements of access, light and air, which easements are not antagonistic to the public use; he may make his dedication conditional on the making and maintenance of improvements on the property dedicated; he may reserve a right of way for a railroad track over the property dedicated, and when such portion has been thus devoted, the use will be suspended so long as that part is used for railroad purposes; he may reserve the right to control the location of any railroad over the property dedicated, and demand reasonable compensation therefor; he may reserve all private rights in land under water originally appurtenant to the estate, or the right to plow up and interfere temporarily with the use of a highway; he may prescribe the width and extent of the highway, or reserve to himself a strip of land between two streets, and the use made by him of the land so reserved at the time of the dedication will not deprive him or his assigns of the right to apply it afterward to other uses," etc.
It appears to us that in laying out a subdivision of land in a rural section into streets, lots, avenues, and alleys, no right is vested either in the public or those who buy such lands, contrary to the reservation made in the dedication. It is highly desirable, if not necessary, in such cases, to have such utilities as water, light, sewerage, telephones, and telegraph facilities, and we see no objection to the owner of the land, in laying same off in such addition, reserving to himself the sole right to control such utilities. This right, of course, is subject to the power of eminent domain, and the land may be condemned for public purposes under section 17 of the state Constitution. In other words, it is permissible for the owner to dedicate streets or highways, and in dedicating same to limit the use of the public, or the landowners buying lots, to use only the surface of such streets for the purpose of ingress and egress.
In the present case, there seems to have been a contract by which the owners of the land, when the addition was laid off, agreed to furnish water, light, and sewerage to the inhabitants. This was, of course, a benefit to them. There is nothing in the form of this contract prohibiting the owners from sinking wells upon their own property for their own use, artesian or otherwise. They were denied the privilege of furnishing such water to other landowners, or using the streets, and the plat within the streets reserved, for such purpose. In other words, there is nothing in the contract which would prevent any landowner from procuring water for his own use and his own land; and, this territory having an abundant water supply, the procurement of water for domestic purposes is seldom a serious problem. It can usually be had by the simple expedient of boring or digging a well; and we fail to see how any monopoly is established by such reservation, so long as each owner can procure water for his own use upon his own land. We do not mean to say that it is not permissible for the owners to use facilities furnished by the original owners, even though it might result in one party of the grantors, or their assigns, having the absolute right to furnish water. In such case, it would be subject to the lawmaking power of the state, or, when brought into a municipality, by such municipality. Of course, there might be cases where water companies have been granted exclusive rights to furnish water to a municipality, at rates therefor which have been fixed by contract, and these have been generally upheld as valid. In the very nature of things, a water company, or light company, can only exercise as a going concern when it has practically the exclusive right so to do, although such exclusive right may not be vested by law or by contract. See Vicksburg v. Vicksburg Waterworks, 202 U.S. 453, 26 S.Ct. 660, 50 L.Ed. 1102, 6 Ann. Cas. 253; Vicksburg Waterworks Co. v. Vicksburg, 185 U.S. 65, 22 S.Ct. 585, 46 L.Ed. 808; Walla Walla v. Walla Walla Waterworks, 172 U.S. 1, 19 S.Ct. 77, 43 L.Ed. 341; Knoxville Waterworks v. Knoxville, 200 U.S. 22, 26 S.Ct. 224, 50 L.Ed. 353; New Orleans Gas Light Co. v. Louisiana L. H.P. Mfg. Co., 115 U.S. 650, 6 S.Ct. 252, 29 L.Ed. 516.
As we understand it, there has been no effort made to question the reasonableness of the rates charged for the utilities erected by the grantors. These grantors have gone to considerable expense, and have established a business which can be destroyed, if the contentions of the city should be upheld, by the simple expedient of the city laying its own pipes, and furnishing water at a cheaper rate than the appellants would be able to do, having a more circumscribed territory and less abundant facilities. It is the policy of our Constitution to protect property, and, while the city may condemn the rights the appellants have, and acquire the exclusive use of said streets, it must do so by eminent domain proceedings, or by contract, paying whatever the property is reasonably worth, as fixed either by contract, or in the condemnation proceedings.
The court therefore erred in granting the relief prayed for in the bill and enjoining the appellants from interfering with the city's use of said streets and canceling said reservations of the appellants.
The judgment is therefore reversed and remanded, and the case remanded for relief on the cross-bill for damages done, and the original bill will be dismissed, and complainants remitted to the right of condemnation or purchase.
Reversed and remanded.