Inman v. Tripp

• Citation: 11 R.I. 520
• Parties: WILLARD F. INMAN v. BENJAMIN TRIPP, City Treasurer of the City of Providence.
• Decision Date: 10 March 1877
• Court: United States State Supreme Court of Rhode Island

11 R.I. 520

WILLARD F. INMAN v. BENJAMIN TRIPP, City Treasurer of the City of Providence.

Supreme Court of Rhode Island.

March 10, 1877

The doctrine that a municipality cannot be held liable for the consequences of an act which it is legally authorized or is required to perform will not justify an invasion of private property, even if the invasion is only consequential.

When a statute creates a new right or liability, and at the same time gives a remedy, the remedy given is exclusive; but when the right or liability was not created by the statute, but would have existed without the statute, the statute remedy is cumulative.

The city of Providence, required by statute to keep its streets in good repair, and authorized for this purpose to grade them and to change their grades, to make culverts, and build drains and sewers, so changed the grade of certain streets as to allow surface water which formerly flowed in other streets, and other surface water which was formerly ponded at some distance from the plaintiff's estate, to run down the street whereon his estate fronted, and thence on to his estate and into his cellar and well:-

Held, that the city was liable for the damages thus caused to the plaintiff

Held, further, that the plaintiff's right of action did not arise from the mere change of grade in the highway, but from the injury suffered in and on his estate resulting from such change.

Held, further, that though the act of changing grades or providing sewers, or refusing to change them or to provide them, may involve a discretion, yet that this is not a sufficient defence to an action against the city when private property has been invaded and its use impaired without compensation.

The duties of highway commissioners were, under a statute prescribed by the city appointing them, with a proviso that they should be " always subject to the orders of the city council" :-

Held, that their official acts must be presumed to be the acts of the city.

TRESPASS on the case. Heard under the following agreement signed by the attorneys of the litigants:-

" The plaintiff offers to prove the following facts:

That, at the time of the grievances alleged in his declaration, he was the owner of an estate on the northerly side of Public Street, in the city of Providence, with a dwelling-house, barn, and other buildings and improvements thereon.

That said city, prior to said time, caused the grade of said Public Street, which was a public highway, to be changed, and that the highway commissioners cut down a portion of a way called Updike Street, at its junction with Public Street, whereby the surface water, which had collected in a pond at the corner of Greenwich and Daboll streets, was carried through Mawney Street, a public street and highway, and into and through said Updike Street upon Public Street, and thence flowed upon the estate of the plaintiff, located at the lowest point on said Public Street, and filled his cellars and well, and destroyed his property, and otherwise caused him great annoyance and injury.

The plaintiff also offers to prove that, prior to said time, said city also changed the grade of Broad Street, which crosses Public Street, and thereby caused the surface water which came on said Broad Street, which formerly had not flowed into Public Street, to be turned into Public Street, which water also flowed along said street, and into and upon the plaintiff's estate, doing him similar injury. That he presented his claim to the city council^[1] more than thirty days before this suit was commenced, and no compensation has been made to him for said injuries.

If, upon these facts being proved, the plaintiff can maintain his action, the cause is to stand for hearing before the court upon the question of damages; otherwise judgment is to be entered for the defendant."

Charles H. Parkhurst, for the plaintiff.

The act of a municipal corporation in grading streets so as to turn surface water upon the land of an individual, which did not naturally flow upon such land, is a taking of private property for public uses within the meaning of the Constitution. Angell & Durfee on Highways (2d ed.), p. 238; Wood on Nuisances, § 755; 2 Dillon on Municipal Corporations, § 799; Buller v. Peck, 16 Ohio 334; Pettigrew v. Evansville, 25 Wis. 223; Hoyt v. Hudson, 27 Wis. 656; Nevins v. Peoria, 41 Ill. 502.

Nicholas Van Slyck, City Solicitor, for the defendant.

I. A corporation is not liable to an action for consequential damages to private property or persons, unless it be given by statute, where the act complained of was done by it or its officers, under and pursuant to authority conferred by a valid act of the legislature, where there has been no want of reasonable care, or of reasonable skill in the execution of the power. Callender v. Marsh, 1 Pick. 418; Rounds v. Mumford, 2 R.I. 154; Sprague v. Worcester, 13 Gray, 193; Perry v. Worcester, 6 Gray, 544; Flagg v. Worcester, 13 Gray, 601, 605; Dillon on Municipal Corporations, § 781; Radcliffe v. Mayor of Brooklyn, 4 N.Y. 195; Bennett v. New Orleans, 14 La. 120; The Governor v. Meredith, 4 Term Rep. 794; Hicks v. Dorn, 42 N.Y. 47; Snyder v. Rockport, 6 Ind. 237.

II. There is no liability on the part of a municipal corporation for not exercising powers it may possess to improve streets, to construct gutters, or provide other means of drainage for surface waters, so as to prevent them from flowing upon the adjoining lots. Dillon on Municipal Corporations, § 799; Wilson v. Mayor of New York, 1 Denio, 595; Mills v. Brooklyn, 32 N.Y. 489; Roll v. Augusta, 34 Ga. 326; Carr v. Northern Liberties, 35 Pa. St. 324; Achison v. Challis, 9 Kansas, 603, 610; Bennett v. New Orleans, 14 La. An. 120.

III. The duty of providing drainage for surface water is, in its nature, judicial or quasi judicial, requiring the exercise of judgment as to time, & c., best means, plan, & c. It follows that the corporation is not liable to a civil action for wholly failing to provide drainage or sewerage. Dillon on Municipal Corporations, § 801; Child v. Boston, 4 Allen, 41, 52; Wilson v. Mayor of New York, 1 Denio, 595; 5 Am. Law Reg. N. S. 33, note.

IV. There is no liability on the part of a municipal corporation for grading or changing the established grade of its streets, although the exercise of the power may be injurious to the adjoining property owners, unless the liability is imposed by statute. Dillon on Municipal Corporations, § 782; Rounds v. Mumford, 2 R.I. 154-163; Smith v. Washington, 20 How. U.S. 135, 149.

a . Of the necessity or expediency of the exercise of its powers, the governing body of the corporation, and not the courts, are judges. Dillon on Municipal Corporations, § 543; Callender v. Marsh, 1 Pick. 416; O'Conner v. Pittsburgh, 18 Pa. St. 187; Markham v. Mayor of Atlanta, 23 Ga. 402, 406; City of New Haven v. Sargeant, 38 Conn. 50; Plum et al. v. The Morris Canal & Banking Co. et al. 10 N.J.Eq. 256.

b . If the legislature gives a remedy, that remedy alone can be pursued. Dillon on Municipal Corporations, § 543; Hovey v. The Mayor, 43 Me. 322, 332; Andover v. Gould, 6 Mass. 40; Boston v. Shaw, 1 Met. 130.

c . The liability of towns and cities in this state for changing the established grade is fixed, and the remedies given, by cap. 60 of the General Statutes, from § 34 to § 41 inclusive.

V. Provisions of law in a city charter, authorizing the opening and improving of streets, or the construction of works of a public nature therein, within the scope of the legitimate uses of streets and highways, are not unconstitutional because they omit to provide compensation for those who, although their property is not taken, suffer indirect or consequential damages. Dillon on Municipal Corporations, § 784, and cases cited in note 1, p. 902, 2d ed.

a . But this question has been passed upon and decided, in Rounds v. Mumford, 2 R.I. 160.

VI. Authority to establish grades for streets involves the right to make changes in the surface of the ground, which may affect injuriously the adjacent property owners; but where the power is not exceeded there is no liability unless created by statute, and then only in the modes and to the extent provided for the consequences resulting from its being exercised and properly carried into execution. Dillon on Municipal Corporations, §§ 798, 799, 800; Flagg v. Worcester, 13 Gray, 601; Turner v. Dartmouth, 13 Allen, 291; Franklin v. Fisk, 13 Allen, 211; Dickinson v. Worcester, 7 Allen, 19; Barry v. Lowell, 8 Allen, 127.

VII. A municipal corporation is not liable for the acts of a surveyor of highways, nor is the city of Providence liable for the acts of the highway commissioners. If acting within the scope of their authority, without negligence, carelessness, or wilfulness, then there is no liability; and if their acts are without the scope of their authority, or are negligent, careless, or wilful, then the commissioners may be liable personally, but not the city. Aldrich v. Tripp,, 11 R.I. p. 141; Walcott v. Swampscott, 1 Allen, 101; Barney v. Lowell, 98 Mass. 570.

DURFFE C. J.

The city of Providence is a municipal corporation capable of suing and being sued like any other corporation. The question is, whether, being such a corporation, it is liable to be sued for the injury to prove which the testimony is offered. There can be no doubt that an action would lie against a private corporation or individual for a similar injury; for the right to fight surface water certainly does not go so far as to justify a man's draining the puddles of his own land into the well and cellar of his neighbor. Why, then will not the action lie against the city. The answer given is, that the water was not discharged upon the plaintiff's premises from land...