Opinion
No. 30317.
January 16, 1933.
1. MUNICIPAL CORPORATIONS.
In action against city permitting drain sewer to become obstructed and rainfall to be impounded, resulting in damage to property, evidence sustained jury's finding for plaintiff.
2. MUNICIPAL CORPORATIONS.
City using street as public street was under duty to property owner to keep drain under fill in proper condition, whether city constructed fill and drain or not.
3. MUNICIPAL CORPORATIONS.
City constructing drain was bound to provide for rainfall which experience showed would probably fall, although past rainfalls had been excessive.
4. MUNICIPAL CORPORATIONS.
Instruction city was not liable for insufficiency of drain to carry surplus water from extraordinary rains held properly refused under evidence showing drain was obstructed.
5. MUNICIPAL CORPORATIONS.
City must exercise reasonable care to maintain efficiency of drains.
APPEAL from circuit court of Warren county. HON.E.L. BRIEN, Judge.
R.M. Kelly, of Vicksburg, for appellant.
"That when the City of Vicksburg built said embankment and the drain thereunder the law imposed upon it the duty to keep said drain pipe open, free from obstruction so as to take care of all the water falling on plaintiff's property on the west side of south Walnut Street and all of the water which flowed to plaintiff's said property from the surrounding lots, along with whatever might be brought with the water, such as soil, the said opening."
The above instruction was given by the court, although the testimony of all of the officers testifying for defendant testified that when it was proposed to remove the obstruction, or obstructions, and attempt to remedy the condition, appellee objected.
A city has the right to change its street grade, and to alter original plans and specifications for that purpose, and in so doing there is no negligence per se; and hence a city is not liable for interference with drainage of surface waters thereby, unless negligence in fact is shown.
Chidsey v. City of Pascagoula, 59 So. 879, 102 Miss. 709.
A municipality will be held liable if it collects surface or other water in sewers or drains, and deposits it, either immediately or by the force of gravity, on to the land of an individual. And it is equally chargeable with wrong if a street railway which it has authorized to be built in a street has the effect of diverting surface water onto private property to its injury. However, there is no liability if the collection of the water on the property in question is due wholly or in part to the fact that the property is on a lower level than the street. Municipal corporation are generally held not bound to provide drains or sewers to carry off surface waters. But that they have power to do so is beyond question.
4 McQuillin Municipal Corporation, sec. 1599; 329 Am. Rep. 135; 9 Am. Rep. 473; 112 Pa. 529; 71 S.W. 867.
In view of the testimony offered in behalf of appellees, as to damages created by reason of the excessive rain of February 17, 1927, a rain unprecedented as far as the records of the weather bureau office in the City of Vicksburg show, we respectfully submit that the court erred in refusing defendant the following instruction:
The court instructs the jury that the city is not liable for insufficiency of its sewers to carry off surplus water from an extraordinary rain or storm. Especially is this true where such drains or sewers are sufficient to meet all demands upon them under ordinary conditions, and therefore if the jury believe from the evidence in this case that the sewer or drain to plaintiff's property was sufficient to carry off the waters from ordinary rains, but was not sufficient to carry off the waters from extraordinary rains, then, even though the jury should believe that plaintiff's property was damaged by reason of being overflowed from waters from extraordinary rains, still the jury must find for the defendant.
The evidence not only does not sustain plaintiff's demand for damages, but it clearly shows that she is not entitled to any. The precise condition of things existing when she brought this suit existed at the date of her acquisition of the property, and had therefore existed for many years. It is perfectly clear to our minds that the plaintiff's pretentions are groundless.
Davis v. City of New Orleans, 6 So. 100.
In such cases the universal understanding and practice is, that owners of lots may fill them up or change their natural surface to suit their own tastes or convenience, and so as to obstruct or repel the surface water coming from the lots of others, without liability for injury; and that the public authorities have the same rights and privileges with respect to streets, squares and other public grounds.
It has been held on general principles that a municipal corporation is not liable to a private action for damages accruing from such a cause.
Hoyt v. The City of Hudson, 9 Am. Rep. 473.
A municipal corporation is entitled to exercise dominion over the public highways, and is not liable for so exercising this right as to change or divert the flow of surface water. The obstruction of surface water or an alteration in the flow of it affords no cause of action in behalf of a person who may suffer loss or detriment therefrom against one who does no act inconsistent with the due exercise of dominion over his own soil. A municipal corporation had the same rights to divert or obstruct the flow of surface water as a natural person, and for an obstruction or diversion caused by the grading and improvement of streets there is no liability unless negligence is shown.
Weiss v. City of Madison, 39 Am. Rep. 135.
All witnesses agreed — the beginning and the end — intake and outlet of the pipe was on the property of this appellee. The defendant city had no earthly authority, without the consent of appellee to open or close this drain — it was entirely in possession of, and, under control of appellee.
Whether the appellee had constructed its culverts with sufficient capacity to carry off the water, under all the circumstances affecting the solution of that question, and whether the rainfall was unprecedented, were questions of fact, which should have been submitted to the jury — the triers of fact.
Patterson v. Illinois Central R.R. Co., 29 So. 93.
A city is not bound to furnish drains or sewers to relieve a lot of its surface water, whether its own or that flowing from other premises.
Jordan v. City of Bentwood, 36 L.R.A. 519.
It is clear that there is no liability on the part of a municipal corporation for not exercising the discretionary or legislative powers it may possess to improve streets, and, as part of such improvement, to construct gutters or provide other means of draining for surface-waters, so as to prevent them from flowing upon the adjoining lots. And even when the work of grading the streets has been entered upon, there is not ordinarily, if ever, any liability to the adjoining owner arising merely from the non-action of the corporation in not providing means for keeping surface-waters from property situate below the established grade of the street. There are, indeed, cases which go further, and assert that there is no such liability where, in making improvements upon streets or elsewhere, authorized by law, surface waters are purposely turned from one's own land to that of another — from the street directly upon the adjacent property owner.
4 Dillon, Municipal Corporations, section 1743.
The questions as to whether the rainstorm was an unprecedented one, and whether defendant's culverts were sufficient, were for the jury.
Patterson v. Illinois Central R.R. Co., 29 So. 93.
Thames Thames, and Brunini Hirsch, all of Vicksburg, for appellee.
A city cannot impound surface water, or any other water, on the lot of an abutting owner on one of its streets and escape liability for the damage thereto.
Interfering with the long-established watercourses by raising the grade of streets so as to throw water back on abutting lots, has been held sufficient to render the municipality liable for damages in states having constitutional provisions similar to ours.
City of Vicksburg v. Foley, 59 So. 829; City of Jackson v. Williams, 92 Miss. 301.
Section 17 of the Constitution is applicable.
Tishomingo County v. McConville, 139 Miss. 589.
The following cases in other states having constitutional provisions similar to Mississippi hold likewise.
Arndt v. Kullman, 132 Ala. 540, 31 So. 478; Morley v. Buchanan, 124 Mich. 128; Rice v. Flint, 67 Mich. 401; Avondale v. McFarland, 101 Ala. 381, 13 So. 504.
Even though damage to one's property is caused by excessive rainfall, nevertheless, there must be a recovery unless the jury believes that the rainfall was so unprecedented as not to have been reasonably expected or foreseen by a man exercising ordinary prudence and foresight.
Arndt v. Kullman, 132 Ala. 540, 31 So. 478.
Argued orally by R.M. Kelly, for appellant, and by J.B. Brunini, for appellee.
This is an appeal by the city of Vicksburg from a judgment against it in favor of the appellee, who was plaintiff in the court below, for damages to appellee's property fronting on Walnut street in the city of Vicksburg. The appellee, Mrs. Porterfield, had owned the property so damaged since about 1899. The damage claimed was for permitting a drain sewer, constructed in the street under an embankment by which the water on the west side of the street was to be carried east through a highway embankment, to become entirely obstructed, and the rainfall to be impounded on the west side of the street to a considerable depth after each hard rain. This would gradually drain out through the pipe so constructed, but it required considerable time.
It does not appear when the street was laid out, or when the city constructed the fill under which the drainpipe was placed. Witnesses testified that there had formerly been a bridge over the depression in the swale through which the water naturally ran from the west side of the street eastwardly; that at some time, none of the witnesses remembering distinctly as to the year, the fill was placed in the street between two hills so as to make the street more level. From time to time, the city had dirt, brickbats, and other material dumped on this embankment or fill, and that said material, or some of it, fell to the bottom of the embankment, or was washed there by the rains, so that the mouth, or discharge portion, of the pipe was obstructed and covered up, and the intake of the drainpipe was filled with dirt, tin cans, and other debris. All this took a considerable period of time, but by 1927 it had become wholly inefficient as a drainpipe. In February, 1927, there was a hard rain of several hours' duration, and the water was impounded by the fill and rose into the houses of tenants of the plaintiff, Mrs. Porterfield, who thereupon complained to the city about this condition. The city made some examination, and discussed plans of relieving the situation, but it resulted in nothing.
The city contended that they made a proposition to cut a ditch on the east so as to drain the water, provided the plaintiff would relieve them from damages, and that she refused so to do. The city also claimed that a proposition to reconstruct the bridge at that point made by them was refused by the plaintiff, and that they could not satisfy her.
The plaintiff testified that she did not refuse to agree to anything, but that she insisted that the drain be cleared and the situation remedied, but that the city refused and neglected to do anything about it, and that her property was destroyed so far as its rental value was concerned, and was damaged physically by the water standing thereon and the consequent deterioration therefrom.
The city also contended that the tenants of the plaintiff had erected bulkheads of dirt on the property east of the drainpipe that caused it to be filled up; that the rainfall that year was unusually excessive, and that they were not bound to provide for unusual and excessive rainfalls. There was proof that the rainfall referred to was one of the hardest, if not the hardest, rains which had occurred in years. There was also testimony of other rains, prior to 1927, of an unusual nature and very excessive, and that the damage caused by rainfalls was recurrent, and that, after each rain, water was impounded on the west side of the fill and stood for days, until it could seep through the obstructed drain.
The city also contended that the situation had existed so long that they had acquired a right, by prescription, to have the condition continued without liability on the city therefor.
As to the facts, the evidence is conflicting; but we think the proof is sufficient to sustain the finding of the jury for the plaintiff, both as to liability and as to damage. In fact, there is no contention that the verdict is excessive.
It is contended by the city that the court erred in giving Instruction No. 5 for the plaintiff, reading as follows: "The court instructs the jury that when the City of Vicksburg built said embankment and the drain thereunder, the law imposed upon it the duty to keep said drain open, free from obstruction, so as to take care of all of the water falling on plaintiff's property on the west side of South Walnut Street, and all water which flowed on to plaintiff's said property from the surrounding lots, along with whatever might be brought with the water, such as soil, to the said opening."
We do not think it was error to have given this instruction. There can be no doubt that the city was using Walnut street as a public street and had assumed control of it, and whether the city placed the fill and drain itself, or when it did, it was under duty to keep same in a condition to serve the purpose for which it was constructed.
We think there is no doubt, under the proof, that the city constructed the fill, but it is immaterial whether it did so construct it, or whether it accepted the street with the fill therein at the time.
It is argued that the city is not liable for the accumulated surface water resulting from excessive rainfall, or unusual rainfall.
We do not think this position is sound. The city, in changing a natural condition for drainage purposes, and in removing a bridge under which water formerly passed from the west to the east, should have provided for the escape of water which could have been done at a reasonable expense.
The rule is stated in the case of Arndt v. City of Cullman, 132 Ala. 540, 31 So. 478, 480, 90 Am. St. Rep. 922, as follows: "A municipal corporation, for the efficiency of its sewers, as has been held, is bound to make provision for such floods as may be reasonably expected, judging from such as have previously occurred, although at irregular and wide intervals of time, and is not liable for damages which could not have been provided for or guarded against by the exercise of ordinary diligence, such as unprecedented rains. 10 Am. Eng. Enc. Law, 243; 13 Am. Eng. Enc. Law, 714; 24 Am. Eng. Enc. Law (1st Ed.) 948; [Columbus W.] Ry. Co. v. Bridges, 86 Ala. 448, 449, 5 So. 864, 11 Am. St. Rep. 58."
The defendant requested and the court refused an instruction reading as follows: "The court instructs the jury that the city is not liable for insufficiency of its sewers or drains to carry off surplus water from an extraordinary rain or storm. Especially is this true where such drains or sewers are sufficient to meet all demands made upon them under ordinary conditions, and, therefore, if the jury believe from the evidence in this case that the sewer or drain to plaintiff's property was sufficient to carry off the waters from ordinary rains, but was not sufficient to carry off the waters from extraordinary rains, then, even though the jury should believe that plaintiff's property was damaged by reason of being overflowed from waters from extraordinary rains, still the jury must find for the defendant."
This instruction is erroneous for two reasons as applied to this case: First. It is not correct to say that the city is only duty bound to provide for ordinary rains and not for extraordinary ones. There is a marked difference between extraordinary and unprecedented. As shown by the quotation from the Alabama court above, the city must provide for such rainfall as experience shows will probably fall, although such rainfalls as have occurred in the past have been unusual and excessive. What has happened within a limited period of time, although separated by a considerable period, must be assumed as liable to happen again, and such happening must be taken into consideration in preventing such flooded condition. In the second place, this principle is not applicable to the case at bar, because the city permitted its drain to be filled and obstructed to the extent that it was wholly inadequate to serve the purpose of drainage.
A city must exercise reasonable care in such cases. In Nesbitt v. City of Greenville, 69 Miss. 22, 10 So. 452, 30 Am. St. Rep. 521, it was held that though it may not appear that the obstruction was erected by permission of the municipality, it was liable if the obstruction was continued to exist after the municipality acquired knowledge of its existence. It was also held that, where an obstruction is created by the municipality, or permitted to be erected by another, it must take notice of such defects as ordinary care will discover.
We think the same principle would apply to a drain constructed by a city in a fill made by it in one of its streets. It is not sufficient that the drainage provided in the first instance is adequate. 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. See the cases of 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.
We find no reversible error, and the judgment of the court below will be affirmed.
Affirmed.