We are of opinion, therefore, to reverse the decree and to remand the cause to the circuit court for further proceedings in accordance with the views expressed in this opinion. Reversed. LAMB & CABELL, RECEIVERS, v. THOMPSON, ET AL. (Richmond, March 9, 1911.) 1. APPELLATE JURISDICTION-Appeal and Error-Amount in Controversy. On appeal, the value or amount in controversy must, as a general rule, be made to appear affirmatively, and if it cannot be ascertained the appeal will be dismissed, as the burden is on the appellant to establish jurisdiction. 2. IDEM-Pleading and Practice. Where the record is silent as to the amount involved in the controversy, affidavits may be filed in the appellate court to show the amount. 3. IDEM-Case at Bar.-Where it is made to appear by affidavits filed by the appellee that dividends had been declared by an insolvent bank, aggregating $112.50, on a claim against it represented by a check for $300, the basis of the suit, which amount was tendered to the holder of the check, who declined to receive it pending appeal: Held, that the amount in controversy is less than the amount necessary to give the appellate court jurisdiction. Appeal from Circuit Court of Charlotte county. Dismissed. John A. Lamb, M. M. Martin, for the appellants. HARRISON, J.: The sole question before the circuit court in this case was, whether the appellants or the appellee, Thompson, should bear the loss occasioned by the failure of the appellants to present to the Charlotte Banking and Insurance Company for payment, before it suspended business, a certain certified check for $300. The circuit court held that the check was accepted and treated by the appellants as a cash payment on the appellee's purchase of land from them, and that by reason of their failure to present the check for payment in a reasonable time they should bear the loss caused by the failure of the bank. From this decree the present appeal was taken. The first question to be determined is, whether or not the amount involved is sufficient to give this court jurisdiction. It will be observed that the decree of the circuit court. does not fix a liability for $300 upon the appellants. It declares, in effect, that they are the owners of the certified check for $300, which the record shows they still hold, that. their only source of satisfaction is the bank upon which that check was given, and that they should bear the loss of such portion of the check as the bank did not pay, because of their negligent failure to present the check for payment. within a reasonable time. When the decree complained of was entered, holding that the appellants were the owners of the check, they, eo instanti, became the owners of the interest represented by that check in the fund in the hands of the receivers of the bank for distribution among the bank's creditors. The smallest dividend on this check would reduce the loss suffered by appellants below the amount necessary to give this court jurisdiction. On appeal, the value or amount in controversy must, as a general rule, be made to appear affirmatively, and, if it cannot be ascertained, the appeal will be dismissed, as the burden is on the appellant to establish jurisdiction. Williamson v. Payne, 103 Va. 551. The record is silent as to the amount of the loss the appellants have suffered by reason of their failure to present. the check for payment. Where this is the case, affidavits may be filed in this court showing the real amount in controversy. Wells v. Wilkins, 116 U. S. 393; Same v. Same, 118 U. S. 230. The appellee has filed here an affidavit by the receivers of the bank, after notice to opposing counsel, from which it appears that dividends have been declared on the claim represented by the check for $300, held by appellants, aggregating $112.50, and that there has been tendered to the appellants that amount, which they have declined to receive pending this appeal. The $112.50 since tendered appellants was, under the decree appealed from, as much the property of appellants at the time that decree was entered as it was when the receivers of the bank were ready to distribute the fund in their hands, and it shows that the loss sustained by the appellants, under the decree, because of their failure to present the check for payment, was only $187.50, far below the amount necessary to give this court jurisdiction. This appeal must, therefore, be dismissed as improvidently awarded. Appeal Dismissed. PORTSMOUTH, BERKLEY & SUFFOLK WATER COMPANY v. CITY OF PORTSMOUTH. (Richmond, March 9, 1911.) 1. MANDAMUS-Public Service Corporations-Enforcement of Public Duty-Contract.-A water company which has been granted the exclusive privilege of using the streets of a city for the purpose of furnishing water to it and its inhabitants, by an ordinance which it has accepted, is a public service corporation, and the obligation upon it to comply with the terms and conditions of the ordinance which constitutes the contract between it and the city is the same as though it had been in the form of a charter granted to the company. Mandamus is the proper remedy to compel the performance of a duty owed by such a company under its contract. 2. MUNICIPAL CORPORATIONS-Contract with Water Company-Case at Bar. Under an ordinance constituting a contract between a water company and a city for the supp'ying of water: Held, that a condition, contended for by the water company, upon which it would make certain tappings and connections required by the city-namely, that it should be permitted to have meters installed at its own expense-was within its contract rights and not unreasonable. Error to the Court of Hustings of the city of Portsmouth. Reversed. T. J. Wool, Goodrich Hatton, for the plaintiff in error. Jno. W. Happer, for the defendant in error. BUCHANAN, J.: This is a mandamus proceeding instituted by the city of Portsmouth against the Portsmouth and Suffolk Water Company to compel the latter to make certain tappings and connections between its street mains and the service pipes of the city, so as to properly connect the water of the said company with the sewerage system in the Fifth ward of the city. The relief sought by the city was granted. To that judgment this writ of error was awarded. The court is of opinion that mandamus is a proper remedy to compel the performance of the duty which it is alleged in the pleadings of the city the water company refused to perform. Making the tappings and connections between the street mains and the service pipes of the city was necessary to properly connect the water of the water company with the sewerage system of the city in the Fifth ward. The water company is a public service corporation (Ch. 100, Acts of Assembly, 1878-9, pp. 95-6; Ch. 63, Acts of Assembly, 1901-2, pp. 54-5; Code 1873, Ch. 56; Const., 1902, sec. 153). By the terms of its contract with the city, it had the exclusive privilege of using the streets of the city for the purpose of furnishing water to it and its inhabitants. The duty of furnishing water for sewerage purposes for the Fifth ward of the city was one which it owed to the city, and a refusal to make the tappings and connections in question was, in effect, a refusal to furnish water for sewerage purposes in that part of the city. If this duty had been imposed by the provisions of the charter of the water company or by an ordinance of the city, under our decisions. there could be no question that it was a public duty, and its performance, in a proper case, could be enforced by mandamus. Richmond, &c. Ry. Co. v. Brown, 97 Va. 26; Vinton-Roanoke Water Co. v. City of Roanoke, 110 Va. 661, and authorities cited. The ordinance of a city prescribing the terms and conditions upon which a water company may lay its mains and pipes in the streets of the city and furnish water to it and its inhabitants, when accepted by the water company, constitutes the contract between the city and the water company. Where the obligation on the water company is the same, it would seem to be of little consequence whether the contract between the city and the water company be in one form or in the other, as to the right to compel the performance of the duty by mandamus. The water company, in its answer to the petition for mandamus, raised the question as to its duty to furnish without additional charge therefor water for the sewerage system in the Fifth ward of the city-territory added to the city since the contract between the city and the water company was entered into. This question was abandoned in oral argument in this court. It appears that when the water company was requested by the city to make the tappings and connections between the mains and service pipes, it did not refuse, but expressed its willingness to do so, provided meters were installed upon each of the service connections, at the expense of the water company. This the city declined to do or permit. Thereupon the city instituted this proceeding. The question to be determined, upon the merits of the case, is, whether or not the use of meters, as insisted upon by the water company, was justified by its contract with the city. The provisions of the contract chiefly relied on by the parties to sustain their respective contentions are sections 3, 4 and 5. Section 3 provides, "That the said city shall have authority to lay and maintain, in good condition, suitable service pipes from saia street main pipes, for the supply of fire engine and hose companies' houses, court-house, jail, school houses and all other public city buildings and uses, at the expense of the said city; provided, however, that the tapping and connections with said main pipes shall be under the control and supervision of said water company." By section 4 it is provided, "That said hydrants so set for fire purposes shall at all times be accessible to the fire department for engine and hose companies, for the extinguishing of fires and cleaning of the fire apparatus, and to the proper officers for the use thereof in sprinkling streets and flushing gutters in streets and public places, and washing out market houses and market spaces; but the water from such hydrants and service pipes shall be used only for such public purposes by the city authorities, and with the necessary economy, without waste; and for sprinkling streets, shall be used only from sprinkling carts or other vessels; and no water from any such hydrants or pipes shall be used by any person for any private purpose." Section 5 is as follows: "That the said city, through its agents and the fire department thereof, shall at all times exercise due caution and care in opening and closing the valves connected with said hydrants, to be used as aforesaid, and shall permit no unnecessary waste of the water in connection therewith, or in any place where water is furnished for public use, and shall use the water under the prescribed regulations of the company; provided that such regulations are not unreasonable or inconsistent with the privileges herein granted." Under section 3 the city has the right to lay and maintain service pipes from the street mains for its public uses as therein provided, but the making of the tappings and connections by which this is done is under the control and supervision of the water company. By section 5 it is provided that wherever water is furnished for the public uses of the city it shall be used under the prescribed regulations of the water works, provided such regulations are reasonable and not inconsistent with the privileges granted by the contract. Section 4, among other things, provides that |