BRADLEY v. CITY OF JACKSON

Robertson Campbell and Ross R. Barnett, for appellants.

The demurrers to the declarations presented questions which depend upon the facts of each particular case, and which could not properly be decided on demurrer. Whether we base the liability of the city of Jackson upon the acts of its agents and officers in exercising its jurisdiction over streets, streams and bridges, or in exercising their jurisdiction as building inspectors, in an attempt to enforce the provisions of the building code of the city of Jackson, the liability of the city in the case at bar could not be justly and rightfully determined on demurrer. The most that could be argued by counsel for appellee is that the question of the capacity in which said officers and agents of appellee were acting, in committing the acts complained of, is a question of fact which, in order to determine, it would be necessary to have before the court and jury all of the facts and surrounding circumstances in connection with the action of appellee acting by and through its said officers and agents. As was said by this court in Pass Christian v. Fernandez, 100 Miss. 76, 56 So. 329, "to a very large extent, this question can only be settled by the facts of each particular case, so variant are the conditions under which this question arises." See, also, Denver v. Davis, 86 P. 1027, 6 L.R.A. (N.S.) 1013.

Bringing a case within the definition of a governmental function is an affirmative defense which must be clearly proven by appellee, and this question cannot rightly be decided upon demurrer. The case should be reversed, and the court should hear all the testimony, and then it would be proper to decide whether or not appellants had made out a case, and if they had not, the court would be justified in granting a peremptory instruction. See McWilliams v. Rome, 75 S.E. 645.

The officers and agents of appellee, the city of Jackson, in committing the negligent acts complained of, were acting on behalf of appellee in the exercise of its jurisdiction over its streets, streams and bridges and attempting to perform its duty to preserve and protect the same, for which acts appellee is liable to respond in damages. It is well settled in this state that a municipality is liable for damages in an action of tort for negligence in caring for and maintaining its streets, and for caring for and maintaining artificial streams and bridges. See Byrnes v. City of Jackson, 140 Miss. 656, 105 So. 861; Cohea v. Coffeeville, 69 Miss. 561, 13 So. 668; Stainbach v. Meridian, 79 Miss. 447, 30 So. 607. The action of the appellee in making certain reservations, exceptions and restrictions as to the use of the property abutting upon the artificial channel of Town Creek, and directing the kind and size of piers to support buildings to be construed thereon, clearly showed that, the city engineer and building inspectors were not acting merely in an attempt to see that the provisions of the building code were complied with by appellants, but were in their jurisdiction of, and supervision over, streets, streams and bridges, attempting to see that the provisions of the deed which vested the title to said property out of appellee, the city of Jackson, were complied with, for the protection and preservation of Lamar street, and the artificial channel of Town Creek. City building inspectors and the engineer of the city of Jackson, claiming to have the right to direct the manner of construction of the said buildings, objected to same, and thereafter caused the injury and damage, as complained of, and particularly described in appellants amended declaration. The amended declaration sufficiently shows that the acts of negligence of the agents and officers of appellee occurred in the exercise of the jurisdiction of appellee to protect and preserve its streets, streams and bridges, and for which acts the appellee is clearly liable to respond in damages. Metzroth v. City of New York, 150 N.E. 519.

Is the building department or the building inspector and city engineer of a municipality, in negligently and improperly directing the manner of construction of a building, acting in the performance of governmental duties or in the performance of corporate or ministerial duties? The problem that confronts us is the application of the particular facts to the rules and tests announced by this court, and by other courts and text-writers as to the question of whether or not a particular state of facts brings a case within the definition of the exercise of governmental functions, or within the definition of the exercise of corporate or ministerial functions. To a very large extent, these questions can only be settled by the facts of each particular case, so variant are the conditions under which this question arises. In Pass Christian v. Fernandez, 100 Miss. 76, 56 So. 329, the court said: "The public or governmental duties of a city are those given by the state to the city as a part of the state sovereignty, to be exercised by the city for the benefit of the whole public, living both in and out of the corporate limits. All else is private duty, and for any negligence on the part of the agents or employees of the municipality in the discharge of any of the private duties of the city, the city is liable for all damage just as an individual would be." In this case the city was held liable for an injury caused by the driver of a city cart, engaged in hauling dirt and trash for the municipality. See also Semple v. City of Vicksburg, 62 Miss. 63. In Gulfport v. Sheppard, 116 Miss. 439, 77 So. 193, the court held that the city was not liable for an act of an employee of the city in negligently failing to properly fasten the top of a cess pool cleaned out by him. This case can be distinguished from the case at bar, in that the cleaning of cess pools was for the protection of the health of the whole public, and not the inhabitants of the municipality alone. The best definition and the best reasoned announcement of the rule with reference to municipal functions is set forth in 43 C.J. 183, sec. 180, as follows: "All functions of a municipal corporation, not governmental, are strictly municipal. Municipal functions are those granted for the specific benefit and advantage of the urban community embraced within the corporate boundaries. Logically all those are strictly municipal functions which specially and peculiarly promote the comfort, convenience, safety, and happiness of the citizens of the municipality, rather than the welfare of the general public. Under this class of functions are included, in most jurisdictions, the proper care of streets and alleys, parks and other public places, and the erection and maintenance of public utilities and improvements generally. In this character the corporation stands for the community in the administration of local affairs wholly beyond the sphere of the public purposes for which its governmental powers are conferred. On the other hand a municipal corporation in its private or quasi-private capacity enjoys the powers and privileges conferred for its own benefit. In respect to its purely business relations as distinguished from those that are governmental, a municipal corporation is held to the same standard of just dealing that the law prescribes for private individuals or corporations. Then the municipality acts for the private advantage of the inhabitants of the city, and to a certain extent for the city itself. In such case it is not acting in its governmental capacity as sovereign, or in a legislative capacity, but is acting in a proprietary capacity, acting only in quasi-public capacity. It is performing a function, not governmental, but often committed to private corporations or persons, with whom it may come into competition. The function may be municipal, but the method may not be. It leads to profit, which is the object of the private corporation." McQuillin, Municipal Corporations, sec. 2628, announces the rule to be that, in some cases, the same duties and functions may be municipal, while in others, they may be governmental, and in which section of his work, he says: "It is by force of this reason and the distinction between ministerial and judicial duties, that a duty which is judicial before the municipality has entered upon the performance of it, frequently becomes, when its performance is entered upon, ministerial. The municipality has a discretion to do or not to do the work; the duty is, therefore, judicial up to the time that it is demanded to do the work, but when the work is ordered, the law often requires that it be done in a particular manner, or that it be done in a certain way, and therefore, if the work is ordered, the duty of the municipality to do the work in the manner required and not to do it in the way forbidden, is ministerial. The municipality, as to these two things, has no discretion; as to them, its judgment is superseded, controlled and directed by the requirements of the law, and its duty is to comply with these requirements, and a municipal act is not necessarily legislative because it relates in a general way to a function of government, but if it is substantially or ministerial or corporate nature, it will be classed as municipal." See Oklahoma City v. Foster, 247 P. 81.

The cases nearest in point which we are able to find with reference to the liability of a municipality for the negligence of building departments and building inspectors are cases in which the municipality has been held liable for the negligence of such officers and agents in tearing down buildings in an attempt to enforce building ordinances. See the following cases in which the city has been held liable for such acts of its building inspectors: Goldstein v. Chicago, 172 Ill. App. 415; Faucheux v. Martinville, 45 So. 600; Rosenberg v. Sheen, 77 A. 1019; 43 C.J. 959. In Savannah v. Spalding Construction Co., 116 S.E. 346, the municipality was held liable for the negligent acts of the city engineer.

In Palmberg v. City of Astoria, 199 P. 630, the city engineer of Astoria was negligent in drawing up the plans for the construction and improvement of a street in said city, the city surveyor having make a mistake as to the number of cubic yards of embankment to be constructed. After plaintiff had entered upon the prosecution of the work, he discovered this mistake and knew that his bid was about fourteen thousand two hundred fifty-eight dollars too low, he notified the city surveyor, who demanded that he go ahead and complete his contract. The court held that the city would have been liable for the negligence carelessness and incompetency of the city surveyor in this case, if such negligence had been sufficiently charged, and the case was reversed in order to allow plaintiff to amend his declaration so as to so charge.

Morse Bryan, for appellee.

The alleged acts complained of were of a municipality acting in its governmental capacity under its police powers. Sec. 6765, Hem. Code 1927, reads as follows: "Police Regulations: To make all needful police regulations necessary for the preservation of good order and peace of the municipality and to prevent injury to, destruction of or interference with public or private property; to regulate or prohibit any mill, laundry or manufacturing plant from so operating whereby the soot, cinders or smoke therefrom, or the unnecessary noises thereof, may do damage to or interfere with the use or occupation of public or private property; and to adopt ordinances prohibiting within the corporate limits the commission of any act which amounts to a misdemeanor under the laws of the state. This act shall apply to all municipalities in this state whether operating under special charter, the code chapter, commission form of government or otherwise." In Wasson v. Greenville, 123 Miss. 642, 86 So. 451, this court held that an ordinance requiring a license for the purpose of prohibiting incapacitated or incompetent or reckless persons from driving motor vehicles upon the street in disregard of the public safety is a valid police regulation, and the court by interpretation may eliminate an unreasonable part of the ordinance as an absurdity and uphold the other violated provisions. The powers and authorities conferred on municipalities under their governmental authority and police power give them the right to pass a building code, to inspect the construction of and to inspect buildings generally in a municipality, and all of this is done under the police powers of the municipality. We think Alexander v. Greenville, 54 Miss. 965, is authority for such an assertion. That was the construction of a charter, however, and not a statute, but a charter would be more strictly construed and the construction placed on authority claimed by a municipality is strictly construed. In 4 R.C.L. 395, under the head of "Police Power as Basis of Authority," the text is as follows: "The authority to enact and enforce building regulations can be sustained only on the ground that it is a part of the police power. In connection with building regulations the exercise of this power is limited to the extent that the regulation in question must not be arbitrary in its character, must be one which the courts will not judicially notice to be unnecessary, and must have a tendency to promote the public welfare or safety." This text further states that the weight of authority "regards the power of municipalities so to legislate as being necessarily incident to or comprehended within general police enactments as essential to the general welfare under the exercise of police power and as not in derogation of common right; and while this power might be limited by the legislature, no limitation will be presumed from a statute enumerating some of the common-law powers of municipalities, but not mentioning this power." See 3 McQuillin on Municipal Corporations, p. 281. Our court is committed to the theory that where a municipality is operating in the performance of a governmental function, that there is no liability on the municipality for such acts, and that in such act of the municipality there can be no ratification. See Hattiesburg v. Geigor, 118 Miss. 676, 79 So. 846; Alexander v. City of Vicksburg, 68 Miss. 564, 10 So. 62.

The case of Byrnes v. City of Jackson, 140 Miss. 656, 105 So. 861, was an adjudication as to whether or not a municipality in operating its parks operated under its governmental function or under its private or corporate function. The court after reviewing the two lines of holdings placed Mississippi in line with the authorities holding that the operation of a park was a private or corporate function. If the municipality had the authority to act in the premises to appoint inspectors, then there is no liability and the act of the inspectors and city engineer would be action by them for the city in the discharge of their duties under the police powers. We would like to call the court's attention to Meade v. City of New Haven, 40 Conn. 72, 16 Am. Dec. 14, in which the court said: "The city of New Haven as such has no pecuniary or individual or private interest in the matter, and although the power of the city over the subject is conferred by the charter and not by the general law, yet the city must, we think, be regarded as the agent of the government, and acting for the state and not for itself in making the appointment of inspectors, and therefore not liable for the inspector's negligence." As stated in the New Haven case, so in the present case the city has no financial interest in the undertaking, but is simply carrying out the building code, and the city of Jackson should not be penalized for having incompetent contractors, even though they may be the lowest bidder for a job.

There is no allegation that the municipality was operating in its private capacity. The general allegations of the amended declaration are the same as the original declaration, and while a great deal was said about Town Creek and some mention was made of Lamar street, yet there was no allegation made that the city of Jackson to protect its streets, caused this work to be supervised. There is no allegation that the city did it for the purpose of drainage; and there is no allegation that it was doing so under and by virtue of certain easements retained by the city in certain deeds made exhibits to the declaration.

Argued orally by Ross R. Barnett and Stokes V. Robertson, for appellant, and W.E. Morse, for appellee.

Appellants brought this action against the appellee, in the circuit court of the first district of Hinds county, to recover damages for an alleged injury done the former by the latter in directing the manner in which appellants should construct piers to a building which they were erecting for J.H. and Virgil Howie, the owners of said building. A demurrer by appellee to the original declaration was sustained, and appellants were given leave to file an amended declaration, which they did. To the amended declaration appellee again demurred. The only question raised by the demurrer was whether or not, under the law, the declaration stated a cause of action. That demurrer was also sustained by the court, and, appellants declining leave to file another amended declaration, judgment final was thereupon entered, dismissing the case. From that judgment appellants prosecute this appeal.

Perhaps appellants' case could not be better stated than as set out in the amended declaration, which follows, leaving off the formal parts, and the exhibits, except Exhibit E, the conveyance from appellee.

"Now come the plaintiffs, J.H. and W.D. Bradley, doing business as Bradley Bradley, and file this, their amended declaration by leave of court and complain of the city of Jackson, and for cause of action, would respectfully show unto the court the following statement of facts, to-wit:

"That the plaintiffs are resident citizens of the city of Jackson, first judicial district of Hinds county, Mississippi, and that the defendant is a municipality chartered and incorporated under the laws of the state of Mississippi, and situated in the first judicial district of Hinds county, Mississippi, and heretofore, to-wit, on or about July 1st, 1926, J.H. and Virgil Howie, resident citizens of the said city of Jackson, in the said first district of Hinds county, Mississippi, were owners of a certain lot or parcel of land on the south side of Pearl street in the said city, county and state which had been acquired by the said J.H. and Virgil Howie from R.E. Lake and R.L. Heidelberg, who had acquired it from S.S. Marks and W.G. Sours, and the said S.S. Marks and W.G. Sours had acquired it from C.C. Smith and R.E. Lake, who had acquired it from E.P. Odeneal and Mrs. Annie Odeneal, who had acquired it from the city of Jackson by a deed describing the said property, and containing certain reservations, obligations, permissions and agreements, which are set forth in the said deed, a copy of said deeds being hereto attached, and marked Exhibits A, B, C, D, E to this declaration, and the same being made as much a part hereof as if fully copied herein in words and figures.

"The said city of Jackson was therefore, a predecessor of the said J.H. and Virgil Howie in the title of the said property and by the said obligations, permissions, stipulations, and agreements set forth in its said deed, the said city of Jackson then and there undertook to bind the said J.H. and Virgil Howie as assignees and successors in title of the said ____ to whom the said deed by the said city had been made as aforesaid.

"The said property and certain property east of and contiguous thereto had been acquired by the said city of Jackson by purchase or by eminent domain proceedings for the purpose of digging a channel along and across the same in a general northerly and southerly direction through which channel to divert the flow of water of a natural creek or drain in the said city known as Town Creek. The said Town Creek in its natural channel had before the digging of the said canal across said lands plowed a course through the business portion of the city of Jackson, coming through the northern part of the business portion of said city from a westerly or northwesterly direction flowing easterly along the south side of and near to what is now Amite street in the said city; thence turning southerly into Capitol street in said city and thence bending in a westerly direction flowing for about one hundred fifty yards westerly, thence turning southerly across said Pearl street a distance of about four hundred feet westerly from the land so described in said deed to said Howies, and thence turning southeasterly and across Pascagoula street, which is the first street south of Pearl street at a distance of about three hundred feet south or southerly from the said lands so described in said deed.

"The said Town Creek, flowing in its natural course as above set forth, had at intervals of time overflowed its banks and had flooded certain business houses in that part of the city of Jackson, thereby depreciating the value thereof to the owners of the same.

"The engineers and expert advisers of said city had advised the commissioners of said city that the said overflow had been caused by the insufficient channel and the slackening of the flow of water in said stream by the bends and crooks of the channel thereof, and that the said overflow could be avoided or diminished by the digging of a broad, straight channel from a point just north of Capitol street, across said Capitol street southerly across the block between Capitol and Pearl streets, thence across Pearl street, thence across the block south of Pearl street between Pearl and Pascagoula streets and south across the block or two blocks between Pascagoula street and South street in the said city.

"Thereafter and some time prior to the time the said J.H. and Virgil Howie acquired the said property above referred to, the said city proceeded to acquire the property on and along said straight new channel so outlined, a part of said property being that on and along the eastern edge of that acquired by the said Howies, the said city then and there opening an artificial channel along the said course as recommended by the said engineers and advisers of said city, and adopted the same as a part of its, the said city's, drainage system to carry off the waters of Town Creek and the overflow above referred to, and that after the said channel was dug, straightened and broadened, the said city adopted as a street, known as Lamar street, the part of said channel from Capitol to Pearl street and thereupon erected over the said channel a concrete bridge structure, which said bridge structure over the said channel is now and was at the time of the occurrences hereinafter referred to a street of said city.

"That the said city then and there retained title of the new channel of said Town Creek south of Pearl street and on and along the eastern edge of the said property described in the deed to the said Howies, a copy of which is hereto attached, for the announced purpose of so bridging the said channel and extending the said Lamar street in a straight line from the southern edge of Pearl street to the northern edge of Pascagoula street, in the same manner as the said channel had been bridged as aforesaid from Capitol to Pearl street, the said bridge or concrete construction when completed to be a continuation southerly of said Lamar street, and the said city assumed the right and privilege of directing the kind of structure, and the kind and manner of construction of the buildings and the foundations thereof to be erected in, on and along the edges of said channel so as to keep the said channel open to carry away the said water of Town Creek and the overflow thereof, and to connect to the said buildings so to be ereceted and constructed the bridge work for said street so to be constructed.

"That heretofore, to-wit, on or about July 1, 1926, the said Bradley Bradley, duly licensed contractors and plaintiffs herein, entered into a written contract with said J.H. and Virgil Howie to erect or build a certain house or building, said house or building being now situated on Pearl street in the city of Jackson, Mississippi, and commonly known as the Carroll Tire Company Building, for the said J.H. and Virgil Howie in conformity with a certain contract, plans and specifications, a copy of said contract, plans and specifications is now on file in the office of the city engineer of said city of Jackson, reference to which is here made, and the same is made as much a part hereof as if copied in full herein; that on or about July 23, 1926, the plaintiffs earnestly and faithfully proceeded to perform their respective duties under and in conformity with said contract, plans and specifications and several days subsequent to selecting their employees and materials necessary to erect said buildings and after actually performing several days of labor on said building, the said city of Jackson, through its duly authorized agents, to-wit, city inspectors ____ Ewing and ____ Wells, and city engineer, Peter O'Brian, acting for and on behalf of the city of Jackson, claiming to have the right to direct plaintiffs as to the manner of the construction of the said buildings, objected to the manner in which said building was being erected; and absolutely demanded that the said plaintiffs change their plan or method of pouring concrete and various of their other plans and methods in erecting said building; that the said plaintiffs objected to and protested against the orders given by the city of Jackson, through its said duly authorized agents and inspector, but notwithstanding their objections, the said city through its duly authorized agents and inspector, forcibly took charge of the erection of said building, and absolutely demanded that the said plaintiffs and their employees proceed with the erection of said building in conformity with and under their directions and leadership; that the said plaintiffs were compelled to comply with the said city's orders, through its duly authorized agent and inspector, and commanded to work under their supervision.

"Plaintiffs would further show that the said city of Jackson, through its duly authorized agents and inspector was grossly negligent and wholly unskillful in erecting said building; and they say that as a direct proximate cause of the gross, wanton, reckless and willful negligence of the city of Jackson, though its duly authorized agents and inspector, they have suffered great loss, that said plaintiff have suffered damages in the sum of forty-three hundred sixty-seven and 17/100 dollars ($4,367.17); that said amount was necessarily expended on certain parts of said building in order to repair it or to put it in as good condition as other parts of said building; and that the parts of said building that necessarily had to be repaired or rebuilt by plaintiffs were those parts erected by and under the supervision of the defendant city, through its duly authorized agents; that said loss came about in this way, to-wit:

"The said city of Jackson demanded that the plaintiffs should not pour concrete for the pillars to support the said building unless the said city should have an inspector there on the ground to direct the pouring. Said city required the plaintiffs to make all excavations and build forms for all pillars as shown by plans and specifications and forms for the floors so as to have all the same ready for pouring the concrete at one time. That on account of thus being required to have all the forms ready at one time, the plaintiffs were prevented from pouring the concrete in any of the forms therefor for a considerable time after the forms for the pillars had been made and set. On account of this delay the bottom part of the three rows of forms on the east side of the building filled up with water to some extent, as the defendant and everyone else about the job knew would happen; that the defendant required this to be done in this manner in order that its inspector and supervisor would not have to be on the job for part of each day at different times; that this was done at the direction and under the requirements and orders of the defendant for the defendant's benefit.

"When said forms had all been fixed and the plaintiffs were ready to pour the concrete, said plaintiffs then and there knowing that the lower ends of said forms had filled with water as above set forth, procured a pump and were preparing to pump out all of the water from all the forms before pouring the concrete. Thereupon, said defendant ordered the plaintiffs not to pump said water from said forms, then and there stating — as defendant had stated on numerous other previous occasions — that this pouring of concrete for said pillars would have to be done according to and under the specific directions and orders of the defendant. Thereupon the plaintiffs procured a funnel through which to pour the concrete into such forms for said pillars. Said city forbade such use of said funnel and again stated that the pouring would have to be done according to defendant's directions. Said city then and there directed and requested the plaintiffs to lay aside the pump and funnel, and to prepare an absolutely dry mix and pour the same in bulk down the forms into the water. The plaintiffs and the owners of said building objected and protested, the defendant informed the plaintiffs that this mixing and pouring would have to be done in this manner and that the city of Jackson did require, and was then and there and thereby requiring that said mixing and pouring be done in said manner and under said direction of said city in order that the pouring might be done as quickly as possible and save the defendant the expense of keeping their inspector on the job for additional time.

"That after being ordered by the said city to mix and pour said concrete in said manner, the plaintiffs still protested and objected but being informed by said defendant that it would be impossible for plaintiffs to proceed with the performance of said contract unless they — the plaintiffs — complied with the said orders of the defendant, the concrete for said pillars was thereupon and thereafter mixed and poured in accord with the orders of the defendant. Because said concrete mix was thus prepared and poured in strict accord with the directions of defendant and not in accord with the good judgment of the plaintiffs, as experienced builders, the said cement did not `set up,' hold and bind together the elements of said mix so that when the building was almost completed the pillars under the whole east side of the same began to sink, which made it necessary to tear down the building and brace up the floor and re-excavate for all of the first three rows of pillars on the east side and frame the same up and mix new bottoms for all of said pillars, except one pillar the mix for which had been poured down a funnel, in accord with the judgment of plaintiffs. All of which trouble, delay, danger and expense was caused by the negligence, carelessness, indifference of and improper direction given, as aforesaid, by defendant and its agents. But for the said orders of the defendant that said concrete be mixed and poured in the said manner which the defendant then and there knew or should have known to be improper, said concrete would have set and said pillars would have remained firm, and would not have sunk, and said reconstruction of said building would not have been necessary.

"Because of said acts of defendant as aforesaid and the great losses to plaintiffs occasioned thereby, the plaintiffs were unable to go further with the construction of said building, and the same was rebuilt for their account by the owners thereof which said rebuilding and repair and making good of said loss and damage cost the owners the sum of four thousand and seventeen dollars and seventeen cents, which was charged to and required of plaintiffs by said owners; that the completion of said building was delayed by said acts of defendant for more than thirty days which cost the said owners thereof rents amounting to three hundred fifty dollars, which was also charged to, demanded and required of plaintiffs by said owners; making a total of four thousand three hundred sixty-seven dollars and seventeen cents which was expended and lost by plaintiffs on account of the negligence, erroneous orders, instructions, directions and requirements of defendant as aforesaid.

"Plaintiffs would further show that the work or part of said building that was done or erected according to the judgment and by and under plaintiffs' supervision was done in a reasonably workmanlike manner.

"Plaintiffs would further show that they had promises from reliable citizens of this city, county and state of employment to erect a number of other houses and that as a direct and proximate result of the said gross negligence of said city, as above set forth, the said plaintiffs have failed to obtain said employment, because said persons, observing the manner in which said building was erected, and knowing plaintiffs to be the contractors for said building, attributed to plaintiffs the aforesaid negligence and lack of skill of said city inspectors.

"Because of this, and because of said injury and damage to the reputation of plaintiffs as builders, and as a direct and proximate result of the gross, wanton, reckless and willful negligence of the City of Jackson, through its duly authorized agents and inspector, as aforesaid, said plaintiffs have been damaged and suffered great losses, to-wit, the sum of twenty thousand dollars.

"Further, plaintiffs show that because of the gross, wanton, willful and reckless negligence of defendant as aforesaid, it is liable unto and should by this court be required to pay unto plaintiffs punitive or exemplary damages in the sum of twenty thousand dollars ($20,000). Premises considered, plaintiffs ask judgment against the city of Jackson in the sum of forty-four thousand three hundred sixty-seven dollars and seventeen cents ($44,367.17) together with all costs of this suit."

The conveyance from appellee, made an exhibit to the declaration, leaving off its formal parts, is in this language:

"For and in consideration of six thousand dollars ($6,000) cash in hand paid by the grantee herein, receipt of which is hereby acknowledged, the city of Jackson, Mississippi, a municipal corporation, does hereby sell, convey unto Mrs. Annie Stone Odeneal, the following described land and property situated in the city of Jackson, first judicial district of Hinds county, state of Mississippi, and more particularly described as follows, to-wit:

"Beginning at a point on the north side of Pearl street, which point is five hundred ninety-two and seven-tenths (592.7) feet west of the west property line of West street, and run thence west along the south line of Pearl street fifty-three (53) feet to the northeast corner of lot two (2) of division of the Taylor property by the chancery court of 1913; thence southeastward at an angle of seventy-nine (79) degrees, forty-four minutes (44) turned from the left towards the right from Pearl street along the west side of said lot two (2) to the intersection of the west side of the property recently taken by the city in an eminent domain suit; thence northward along said west side of said property to the point of beginning. The lot herein conveyed being all that part of said lot two (2) west of the land taken in said eminent domain suit and being a triangular parcel of land located in nine and thirteen-hundredths (9.13) acre lot two (2) South Jackson, being parts of lots thirteen (13) and fourteen (14) Taylor subdivision.

"The city of Jackson, Mississippi, reserves a perpetual easement on and over the above described property for the passage of water with the perpetual right of the city of Jackson to go into said drain for the purpose of inspecting it, or to clear it of washed-in, or washed-down, obstructions of all kinds, and for deepening the channel and concreting the bottom of same, the said deepening and for concreting the bottom of same not to put the property holder or holders to any additional pier expense for the then existing piers.

"The easement hereinbefore reserved by the city of Jackson for the passage of water is subject to the perpetual right of the grantee herein and or his successors in title whenever desired or convenient, to build piers in said drain of such size as may be deemed necessary by the grantee and or his successors in title, to support any structure or structures which he, or they, may at any time erect or construct, such piers to be not thicker at the top from east to west than eighteen (18) inches and said piers to run in lines not closer from east to west than fifteen (15) feet in the clear, in a general north and south direction, paralleling in general the flow of water across the above-described property.

"The city of Jackson further grants unto said grantee and or his successors in title, all continuing rights to run with said property, the rights and permissions, (but without liability on the city of Jackson of any kind or character, to any person or persons, including the owner or owners, of any structure or structures which might be damaged by a weakness in or failure of said bridge) to join any structure or structures which he, and or his successors in title, at any time, erect upon the hereinbefore described property abutting the bridge which lies along same, and adjoining the hereinbefore described property, with the right to rest said structure or structures on the ends of the protruding supports on the side of said bridge. If the structure or structures shall be more than two stories in height, the said grantee and or his successors in title, shall strengthen said supports by putting down piers to, at least, the depth of the present supports of said bridge and of such dimensions as shall be sufficient with the strength from the said bridge supports, to maintain the weight of such structures.

"The city of Jackson further grants perpetually unto said grantee and or his successors in title as continuing rights to run with said property, the rights and permissions to remove, at any time, such a structure or structures as may be erected on the hereinbefore described property, adjoining the bridge, the railing, as to permit the unobstructed passage to and from any structure or structures that may be hereafter constructed upon said property.

"No part of the cost of the present street paving or sidewalk or special improvements are to be assessed against said property, but further improvements shall be so assessed.

"The rights and permissions of joinder to and partial support from the bridge, and the rights as to the building of piers in the drain, and the rights and permissions to take down the railing of the bridge, are, as stated above, perpetual rights, rights and permissions which run with the property, and these rights and permissions are not exhausted or affected by one or more enjoyments thereof or by one or more exercises thereof, but may be used and enjoyed as frequently as the grantee herein and or his successors in title, may desire or find convenient.

"Witness the signature and seal of the city of Jackson, by W.A. Scott, its mayor, and A.J. Johnson, its clerk, both duly and fully authorized and empowered to execute and deliver this deed of conveyance, this 2d day of June, A.D., 1925."