Opinion
No. 30917.
January 29, 1934. Suggestion of Error Overruled March 12, 1934.
1. MUNICIPAL CORPORATIONS.
City which constructed double-barrel culvert for stream running under street, and thereby obstructed natural flow of water, must exercise reasonable care to provide and maintain adequate outlets.
2. MUNICIPAL CORPORATIONS.
Whether city, maintaining double-barrel culvert under street to provide for stream and support street, used ordinary care to keep culvert free from obstructions, held question for jury, in property owner's action for damages resulting from overflow.
3. MUNICIPAL CORPORATIONS.
City placing double-barrel culvert in bed of stream for street foundation held not relieved of liability for damages from flooding, by reason of fact that obstructions and debris which accumulated at mouth of culvert and obstructed flow of water were not placed there by city.
APPEAL from Circuit Court of Hinds County.
S.C. Broom and W.A. Shipman, both of Jackson, for appellant.
The court below erred in granting the instruction which tells the jury, as a matter of law, that Rocky Branch is a natural stream, "and that the defendant is not liable for damages for obstructions or debris in said stream which were not placed there by defendant, the city of Jackson, even though such obstruction or debris may have caused Rocky Branch to flood the property of the plaintiff herein."
I.C.R.R. v. Wright, 135 Miss. 435, 100 So. 1.
The city of Jackson has utilized the natural water course as a part and parcel of its drainage system.
In Fewell v. Meridian, 90 Miss. 380, 43 So. 438, the court said that: "No matter who constructed the cross-pipe in the manhole, if the city assumed and exercised control of the manhole and the cross-pipe, and dealt with it as a part of its drainage system, the city is liable for any damage occasioned by such wrongfully constructed cross-pipe and manhole, if it has been duly notified and fails to correct the situation."
Emery v. City of Lowell, 104 Mass. 13; Taylor v. City of Austin, 32 Minn. 247; Chalkley v. City of Richmond, 88 Va. 402; Schoeder v. Barbaboo, 93 Wis. 95; Senheen v. City of Evansville, 140 Ind. 675; Hiram L. Hart v. City of Neillsville, 40 N.W. 699; 1 L.R.A. (N.S.) 952; Sinia v. L. N. Railroad Co., 71 Miss. 547, 14 So. 87; Thompson v. Railroad Co., 104 Miss. 651, 61 So. 596; Y. M.V.R.R. v. Sutton, 63 So. 672; Railroad Co. v. Scott, 110 Miss. 443, 70 So. 459.
A city is bound to make provisions for such floods as may reasonably be expected from previous experience, though at irregular and wide intervals of time.
City of Vicksburg v. Porterfield, 145 So. 355; Arndt v. City of Cullman, 132 Ala. 540, 31 So. 478; 10 Am. Eng. Enc. Law, 243; 13 Am. Eng. Enc. Law, 714; 24 Am. Eng. Enc. Law (1 Ed.) 948; Ry. Co. v. Bridges, 86 Ala. 448, 449, 5 So. 864, 11 Am. St. Rep. 58.
A city must exercise reasonable care in such cases.
Nesbitt v. City of Greenville, 69 Miss. 22, 10 So. 452, 30 Am. St. Rep. 521.
The city must maintain the efficiency of its drains. It is the common knowledge of all persons having experience in such matters that drains constructed on streets and highways have a tendency to become obstructed, and to fill in so as to obstruct the full capacity of the drainage provided. This situation must be kept in view and remedied from time to time so as to maintain adequate drainage in each case.
Whitfield v. Meridian, 66 Miss. 570, 6 So. 244, 4 L.R.A. 834, 14 Am. St. Rep. 596; Fewell v. City of Meridian, 90 Miss. 380, 43 So. 438, 9 L.R.A. (N.S.) 775. W.E. Morse, of Jackson, for appellee.
A municipality is not liable for damages resulting from obstructions in a stream flowing through a municipality which were not placed there by the municipality.
Mayesville v. Brooks, 145 Ky. 526, 140 S.W. 665; 6 McQuillin Municipal Corporation 2d, sec. 2875; I.C.R.R. v. Wright, 135 Miss. 236, 100 So. 1.
This is an action brought by the appellant, Mrs. Zoola E. Cain, against the city of Jackson to recover damages alleged to have resulted from water overflowing her premises, which lie on and along the banks of Rocky Branch creek, a natural watercourse which flows under South Gallatin street of said city. The negligence charged was the alleged failure of the said city to provide and maintain a sufficient and adequate outlet under South Gallatin street, one of the paved public streets of the city, to care for the flood waters flowing into and down this stream at times of heavy and excessive rains. Upon instructions defining the rights and duties of the city with reference to drainage or outlets under the said street, the jury returned a verdict in favor of the city, and from the judgment entered this appeal was prosecuted, the errors assigned being alleged errors in granting instructions requested by the appellee and refusing certain instructions requested by appellant.
The evidence fully supports the allegations as to the flooding of the premises by backwater from this creek. Under the paved street known as Gallatin street, the city had provided what is called a double-barrel culvert, one culvert having an opening of thirty-five square feet and the other, thirty-seven and eight-tenths square feet. Certain civil engineers testified that the double-barrel method of construction of these culverts was proper from an engineering standpoint, on account of the necessity of having a center wall to support the bridge above. They further testified that, according to approved formulas, the area of the openings provided thereby was more than sufficient to take care of the drainage of the entire area which drained in this creek, but admitted that the center wall or connection between the culverts would have a tendency to obstruct the passage of logs, shrubs, trees, and debris through the culverts; and that culverts so constructed, with a partition or dividing wall, would be more likely to collect such obstructions and partially fill up than would one culvert of the size of the two. There was evidence to the effect that the Illinois Central Railroad Company also maintains a culvert further down this stream, which has an opening of only thirty-two square feet, and that it settled a claim against it for damages to the appellant's property, caused by the insufficiency of its culvert, and the jury was instructed that, if it found from the evidence that appellant's injury and damages were caused solely by the insufficient outlet under the tracks of said railroad, they should return a verdict for the city.
At the request of the appellee city, the court instructed the jury, first, that the city was only required to provide a sufficient outlet to take care of the water of the stream in question on all occasions except at times of unprecedented rainfall, or when logs or debris clogged said outlet; and, second, that the city was not liable for damages for obstructions or debris in said stream which were not placed there by it, even though such obstructions or debris may have caused the stream to flood the property of appellant. The two instructions embodying this announcement are assigned as error.
The stream in question provided drainage for a large area adjacent thereto, and when the appellee city constructed across this stream a paved street, and a bridge, the foundation of which obstructed the natural flow of water in the stream, it was under the duty to provide adequate outlets or culverts under this street to care for such rainfall as might be reasonably expected from past experience, and it is not sufficient that the outlets provided in the first instance were adequate, but it must at all times exercise reasonable care to maintain the sufficiency and adequacy of such outlets. City of Vicksburg v. Porterfield, 164 Miss. 581, 145 So. 355.
There was evidence, oral and photographic, showing the accumulation of a large quantity of logs, trees, and debris in the mouths or openings of these culverts which would tend to greatly obstruct the flow of water through them. It was a question to be determined by the jury, under proper instructions, whether these culverts so obstructed provided adequate drainage, and, if not, whether the city used ordinary care to keep them free from obstructions and in condition to afford adequate drainage. Since the city placed the foundations of its bridge and paved way in the bed of this stream, and was, therefore, under the duty to provide and maintain adequate outlets for the water that was accustomed to flow in the stream, it was not relieved of its duty to keep these outlets free from obstructions, and adequate for the purpose, by reason of the fact that the obstructions and debris which accumulated at the mouth of the culverts and obstructed the flow of water were not placed there by the city. We think, therefore, that the two instructions referred to above were erroneous and prejudicial.
It was said in the argument that the court below was led to grant these instructions by reason of the holding of this court in the case of Illinois Central Railroad Co. v. Wright, 135 Miss. 435, 100 So. 1. On its facts the Wright case is clearly distinguishable from the case at bar. All that was held in the Wright case was that, under the particular facts, the failure of the railroad company to maintain adequate drainage across its right of way was not the proximate cause of the injury to the adjacent property, "inasmuch as the drainage would have been obstructed by the owner's own failure to keep the ditch open, even if the railroad had provided for adequate drainage across its right-of-way."
For the errors indicated in the instructions, the judgment of the court below will be reversed, and the cause remanded.
Reversed and remanded.