Summary
In Barton v. Syracuse, 36 N.Y. 54, also cited for the plaintiff, the ground of action was not the plan of constructing the sewer, but the neglect to keep it in repair.
Summary of this case from Johnston v. District of ColumbiaOpinion
January Term, 1867
This is an action on the case for negligence, in which the defendant is charged with culpability in omitting to keep a sewer in proper repair, and in suffering it to become filled with dirt and rubbish, by reason of which the flow of the water was impeded, causing it to set back through the plaintiff's drain into his cellar, to the injury of his property,
The referee, to whom the case was referred to hear and determine, directed judgment for the plaintiff, which judgment was affirmed at General Term.
By the city charter, the mayor and common council were authorized and directed to construct sewers through the city, and to keep them in repair. They accepted and entered upon the performance of this duty, and constructed sewers along such of the streets as were deemed appropriate, with a view to favorable and healthful drainage. The expenses were assessed upon the property benefited, as provided by the charter, and their supervision and control were properly assumed by the city government. Under this condition of authority and duty, the municipal corporation were bound, through the proper officers, to a faithful and prudent exercise of power, and carelessness and negligence in that regard created a liability, which might be enforced by any one suffering damages therefrom. So the law is firmly established, that in constructing sewers, and in keeping them in repair, a municipal corporation acts ministerially, and, having the authority to do the act, is bound to the exercise of needful prudence, watchfulness and care. The authorities in support of these principles are too numerous and familiar to require particular comment. ( The Mayor, etc., v. Furze, 3 Hill, 612; Hutson v. The Mayor, etc., 9 N.Y., 163; The Rochester White Lead Company v. The City of Rochester, 3 id., 463; Conrad v. The Trustees of Ithaca, 16 id., 158; Mills v. The City of Brooklyn, 32 id., 489.) It is insisted that the sewer in this case was constructed exclusively for surface drainage. This, however, is obviously a mistaken assumption. The charter evidently contemplated all the usual advantages to result from a system of city sewerage, embracing alike the health and convenience of the inhabitants. The system contemplates general drainage of all accumulations of water and soluble matter — not only the speedy discharge of such as would otherwise stagnate on the surface, or accumulate from percolation, and other causes, in cellars, but also the ready removal of impurities, incident to populous localities, which necessarily collect, in a greater or less degree, in every tenement.
In this way a sewer becomes subservient to health and comfort, and is made common to all who own or occupy adjacent property; hence the expense of its construction is charged on such property as a positive benefit. In this view, it becomes the right of every one occupying premises along the line, under proper restrictions for general protection, to use it by inserting a drain from his lot. In this case, the city charter or ordinance recognizes and concedes the right thus to use it, as it imposes a penalty for digging to connect with a sewer without first serving a notice of such intention. (Chap. 9, § 2.) It seems, therefore, that the right of the plaintiff to connect his drain with the public sewer is placed beyond possible question. But it is insisted that the privilege to drain into the public sewers was subject to certain conditions which were not complied with by the plaintiff; that he in fact violated an ordinance of the city in connecting his drain with the sewer, and incurred a penalty; hence he cannot recover in this action. It seems very plain that it was intended that permission to connect drains with the sewers should be obtained from the corporation or from some of its officers. Section 6 of title 5 of the charter requires the city surveyor and engineer to keep a record of all sewers established by the common council. Section 13 makes it the duty of the superintendent of the streets to supervise the building and repairing of sewers, etc. Section 2 of chapter 9 of the ordinances and by-laws makes it a penal offense to tear up any pavement, street or crosswalk, or to dig any hole or trench in any street without permission from the common council or mayor, and further imposes a penalty for omitting to give notice to the clerk of the intention to dig, if for the purpose of connecting with a sewer, or water or gas-pipe, giving the location and name of the owner, to the end that the clerk might keep a register of the same. Section 131 provides that whenever permission is given in any case to lay any drain, or to dig or take up any pavement or sidewalk for the purpose of making or repairing any drain, and the same shall be done, unless otherwise specifically ordered by the common council, under the direction of the street superintendent, and any refusal or neglect to conform to his orders and directions was made final. By section 132 it is provided that no person shall open or penetrate any common sewer for the purpose of making a drain therewith "without the consent of the street superintendent, or a member of the common council, under a penalty of five dollars for each and every offense."
Thus it is seen that consent was a prerequisite to the opening of a trench in the street, or to the opening or penetrating of a sewer for the purpose of making a drain therewith, and any violation of such duty was a penal offense. These, too, were important and wholesome regulations. But who had the right to give the requisite consent? From section 2, of chapter 9, it is plain that permission from the common council or mayor would be a protection and sufficient authority, and it is also fairly inferable from the provisions of section 132, that the street superintendent or a member of the common council might also give such consent. These ordinances are not entirely harmonious, but I think may be so construed as to carry out their general purpose without absolute conflict. It was undoubtedly intended that no opening in the street, or interference with the sewers should be suffered, except under the sanction and approval of the city authorities. This was esential to the enjoyment and protection of public rights. But notice of the intention, and permission from a competent source, met and answered all the exigencies of the case. The street superintendent could then, if necessary, assume the charge of, and direct the work. Now it is true by section 2, of chapter 9, it is made a penal offense to excavate in the street without permission from the common council, or mayor, and by secsion 132, it is made penal to open or penetrate a sewer for the purpose of connecting a drain therewith, without the consent of the street superintendent or a member of the common council. These ordinances should be read together; and when so read and construed, they mean that permission to excavate or dig in the streets, must be obtained from the common council or mayor, except that when a person desires to open or penetrate a sewer for the purpose of connecting a drain therewith (which necessarily implies the breaking of the surface and digging), the consent of the street superintendent or of a member of the common council, shall be sufficient authority so to do.
This, too, seems to have been the practical construction given these sections by all parties; for in most, if not in all cases, notice to, and permission by the street superintendent was acted upon and accepted as sufficient. And it evidently was so, for all practical purposes, as it devolved on the street superintendent to see that the streets were not unnecessarily obstructed, and that connections with sewers were properly made. It seems, therefore, that the plaintiff incurred no penalty, hence was guilty of no unlawful act in opening or penetrating the sewer for the purpose of connecting his drain therewith, inasmuch, he had permission so to do from the superintendent of the streets.
But it is insisted that the plaintiff was bound to give notice to the clerk of his intention to dig in the street for the purpose of connecting his drain with the sewer, and that he incurred a penalty for omitting so to do. The act made wrongful by the latter clause of this section (§ 2) is the neglect to serve the notice, the object of which was to enable the clerk to keep a register of the connection. The omission to give the notice did not make the connecting with the sewer unlawful. It therefore did not make the plaintiff a wrong-doer in that regard. The cases cited by the appellant's counsel (7 Wend., 276; 14 Johns., 223; 1 Allen, 408; 10 Metc., 363; 3 Allen, 407; 3 Denio, 226) are not applicable to this case.
It is also insisted that the recovery is erroneous, because there was no proof of notice to the corporation of the needed repair before the injury complained of occurred. Such notice, however, was not necessary in this case. The injury here resulted from an omission of duty — a neglect to do an act which it was incumbent on the defendant to perform. It differs from the case of Griffin v. The Mayor, etc., of New York ( 9 N.Y., 465), where the obstructions were placed in the street by third parties. The distinction is well marked by Judge DENIO in the case cited.
Other objections to the recovery in this case are urged upon our consideration, but they seem well answered in the opinion of Mr. Justice ALLEN, in the Supreme Court. (37 Barb., 292).
The judgment should be affirmed.
All concur, except PORTER, J., who, having been counsel, expressed no opinion.