Opinion
No. 29600
Decided February 23, 1944.
New trial — Motion filed within three-day limitation — Court filed for journalization finding disposing of controlling issues — Municipal corporations — Damages to realty caused by water percolating from broken sewer — Constitutes taking or appropriation of private property for public use — Only owner at time of appropriation or injury entitled to damages — Right does not pass to subsequent grantee, when — Evidence — Instrument purportedly assigning damage claim, inadmissible, when.
1. In an action at law submitted to the court without a jury, the filing of a motion for a new trial is within time when done within three days after the court has filed for journalization a finding which disposes of all the controlling issues in the case.
2. In an action against a municipality where damages are claimed for the depreciation in value of real property resulting from the percolation of water into such property from a broken sewer, after notice to the municipality of the defect, the case may be presented on the theory of the taking or appropriation of private property for a public use, if the allegations of the petition will so permit. ( City of Norwood v. Sheen, Exr., 126 Ohio St. 482, approved and followed.)
3. The right to damages for injury to real property by its temporary appropriation to a public use is in the one who owns such property when the appropriation and injury occur, and such right does not ordinarily pass to a subsequent grantee who acquires the property after such appropriation has ceased.
4. To maintain an action, the plaintiff must have a right to be enforced or a wrong to be prevented or redressed.
5. An instrument purportedly assigning a claim for damages is not admissible in evidence, over objection, in the absence of preliminary proof as to its execution and authenticity.
APPEAL from the Court of Appeals of Hamilton county.
On June 20, 1939, Mary B. Steinle filed her petition in the Court of Common Pleas of Hamilton county, claiming damages of $5,500 against the city of Cinclaiming, for depreciation in the value of her real property by reason of injuries thereto caused by the escape of water from a broken and defective sewer.
In her petition plaintiff alleged that in 1913 defendant obtained a ten-foot right of way from the owners of the property to the west and north of her lot and agreed to construct and maintain a sewer without expense to the grantors of the right of way; that defendant constructed the sewer and thereafter failed to maintain it in good repair; that the sewer became broken and clogged so that large quantities of water escaped therefrom into the premises of the plaintiff and into those of other nearby owners; that in 1930 defendant was notified that the sewer was out of repair; that beginning in 1933 the residence structure of plaintiff began to settle as a result of the water discharged from the sewer, washing out the earth below the surface of the ground of her premises and thereby causing the land to settle and the house and garage to crack; and that in 1934 defendant repaired the sewer so that by the middle of the year 1935 plaintiff's house, garage and the surface of her lot ceased to sink.
Answering, the defendant admitted it obtained the right of way for the sewer in 1913, constructed a sewer through such right of way and repaired it in 1934. It further averred that plaintiff's house was constructed on a deep artificial fill; that any sinking and cracking of the same was wholly attributable to the settling of such fill; that the cause of action alleged by the plaintiff did not accrue within four years of the filing of the petition; and that plaintiff did not acquire the described property until 1936, a date subsequent to the accrual of the cause of action set forth in the petition.
A jury being waived, the case was tried to the court, largely on the bill of exceptions in another cause of a kindred nature. It was stipulated between the parties that, if plaintiff were entitled to damages, the amount thereof would be $3,000.
On the trial plaintiff testified that she purchased her property from Mrs. Theresa McLaughlin in March of 1937. The bill of exceptions then shows:
"Q. I hand you a paper Mrs. Steinle and ask you what that is or do you know about the giving of that? A. No I do not.
"Mr. Dickerson: Well, may it please to court; I wish to introduce this in evidence. It is an assignment of any right of claim of Theresa Ann McLaughlin against the city of Cincinnati to the witness Mary B. Steinle for damage to the property at 138 Warner street, Cincinnati, Ohio."
The instrument bore date of December 13, 1941. Its introduction was objected to by counsel for the city. It was marked for identification and the court reserved ruling on its admissibility and validity. Later it was admitted, and counsel for the city took exception thereto.
The court rendered a memorandum opinion dated August 27, 1942, announcing a decision in favor of the plaintiff, but leaving open for future determination the question raised by the answer as to the right of the plaintiff to maintain the action.
On October 15, 1942, counsel for plaintiff filed this written opinion without any order of the court to do so. Then, on October 29, 1942, the court entered a finding for the plaintiff, which recited that on October 28, 1942, there was further presentation and argument on the question reserved, "upon consideration of all of which the court does find in favor of the plaintiff and does find that the plaintiff should recover against the defendant, the city of Cincinnati, the sum of three thousand dollars ($3,000), together with her costs herein expended."
Defendant's motion for a new trial and its motion for judgment notwithstanding the finding were filed within three days after the entry of the above finding. These motions were overruled and judgment rendered for plaintiff in the sum of $3,000 with interest.
An appeal from such judgment was prosecuted to the Court of Appeals, whereupon plaintiff filed a motion to dismiss the appeal and to strike the bill of exceptions from the record because no proper motion for a new trial had been filed within three days after the decision and finding of the trial court on August 27, 1942.
Both branches of the motion were overruled and, upon a consideration of the case on its merits, the judgment of the trial court was reversed and final judgment entered for the defendant.
Allowance of the motion for certification brings the case to this court for review.
Mr. E.C. Hauer and Mr. R.T. Dickerson, for appellant.
Mr. John D. Ellis, city solicitor, Mr. Ed F. Alexander, Mr. Nathan Solinger and Mr. Robert J. White, for appellee.
No error was committed by the Court of Appeals in its holding on the procedural question. The trial court made no complete and final disposition of the matter in plaintiff's favor until its finding of October 29, 1942, which was filed for journalization on that date and the motion for a new trial filed within three days afterwards was within time. See In re Estate of Lowry, 140 Ohio St. 223, 42 N.E.2d 987; State, ex rel. Curran, v. Brookes, Jr., 142 Ohio St. 107, 50 N.E.2d 995.
The generally accepted rule appears to be that in the trial of a cause to the court without the intervention of a jury, the filing of a motion for a new trial should await a decision or finding in which all the material issues are finally disposed of. 39 American Jurisprudence, 184, Section 181; Southern Colonization Co. v. Cole, 185 Wis. 469, 201 N.W. 817.
As to the merits, plaintiff, to avoid the four-year limitation for the bringing of an action as prescribed by Section 11224, General Code, presented her case on the theory that, by the escape of the water into her land from the defective underground sewer, there was a temporary appropriation of the property to a public use, and she was entitled to prevail on that basis within the principles stated in City of Norwood v. Sheen, Exr., 126 Ohio St. 482, 186 N.E. 102, 87 A. L. R., 1375.
In the Sheen case the rule was announced that where a municipality deposits sewage from a sewer upon private property, such property is thereby subjected to a public use, and a taking occurs within the meaning of Section 19, Article I of the Constitution of Ohio, for which damages may be claimed. See 18 American Jurisprudence, 759, Section 134.
It will be observed that in connection with cases involving the appropriation of private, property to a public use, Ohio has adopted the liberal view that "any substantial interference with the elemental rights growing out of ownership of private property is considered a taking." Smith v. Erie Rd. Co., 134 Ohio St. 135, 142, 16 N.E.2d 310, 313, and the cases therein cited.
Assuming, for the purposes of discussion, that the appropriation theory is supportable under the allegations of the petition, is plaintiff entitled to succeed?
It is elementary that the right to maintain an action must be in the person instituting it. Here, plaintiff's claim for damages is based on the depreciation in value of the property, caused by the water escaping from the broken sewer. She purchased the property in 1937 as it then was. The city had repaired the sewer in 1934 and had stopped the leakage. According to the allegations of the petition, "thereafter the ground on plaintiff's premises and to the west thereof gradually dried out and by the middle of the year 1935 the house, garage and surface of plaintiff's lot ceased to sink."
Any taking or appropriation by the city was temporary and had ended before plaintiff bought the property. Such right of action as there might have been under the appropriation theory would have belonged to the one who owned the property when the appropriation and injury happened.
The general rule is that the right to damages for the taking of land or for injury to land is in the one who owns the land when the taking or injury occurs, and does not ordinarily pass to a subsequent grantee. 29 Corpus Juris Secundum, 1115, Section 202; 30 Corpus Juris Secundum, 101, Section 389. See 18 American Jurisprudence, 864, Section 231. Any right on the part of the subsequent grantee to damages is dependent on a new taking or injury after his acquisition of title. 30 Corpus Juris Secundum, 102, Section 390.
Plaintiff can derive no benefit from the purported assignment from Theresa McLaughlin in 1941 of the claim for damages. In the first place, Section 11241, General Code, requires that "an action must be prosecuted in the name of the real party in interest." Plaintiff did not answer that description when she brought her action in 1939. In the second place, if the assignment may be accorded effect on any basis, it is not properly in evidence over the defendant's objection. As a condition precedent to its admission, proof was required as to its execution and authenticity, which was not furnished. 17 Ohio Jurisprudence, 601, Section 495; Walsh v. Barton, 24 Ohio St. 28, 41; 20 American Jurisprudence, 776, Section 922; 32 Corpus Juris Secundum, 476, Section 625.
Finally, the Court of Appeals found a lack of evidence, as a perusal of the bill of exceptions herein discloses, that water escaping from the broken sewer actually permeated the lot now owned by plaintiff. True, evidence is present tending to show that such water did find its way into the ground underlying nearby properties, but a finding that plaintiff's land was similarly invaded would rest on conjecture.
Defendant offered persuasive testimony to the effect that any uneven settling of the buildings in proximity to the sewer, causing them to warp and crack, was due to the loosely filled ground on which they were built. Some of the defendant's witnesses also testified that excessive moisture in the ground adjacent to the sewer was attributable to drainage conditions disassociated from the sewer.
Upon the record, our conclusion is that plaintiff failed to establish an enforceable claim against the city, and the judgment of the Court of Appeals is therefore affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, BELL, WILLIAMS and TURNER, JJ., concur.
I concur in the syllabus and judgment of the court in this case, but in doing so I desire to express my view as to the rule of law set out in the second paragraph of the syllabus.
A clear distinction must be maintained between an abatable nuisance temporarily affecting the use of real property, and a similar nuisance which, during its continuance, has permanently injured and diminished the value of the property.
The remedy for a wrongful invasion of the former type, such as the overflow of vacant land by water, is an action for damages limited by the four-year statute of limitation, in which there may be recovered the amount of the resultant diminution in the rental value of the property. The remedy for a wrongful invasion of the latter type, such as the permanent destruction of buildings by their submergence in water or sewage escaping from defective drains or pipes constructed and maintained by a municipality, is an action to recover damages for the partial appropriation of the property for a public use, limited by the 21-year statute of limitation, in which action there may be a recovery for the permanent depreciation of the property, measured by the difference between the value before and the value after the damage or injury.
On the theory that the second paragraph of the syllabus in this case relates to a situation of the latter type, and is descriptive of an action to recover damages for permanent injury to the real estate of the appellant, I concur in that paragraph as well as other paragraphs of the syllabus.