Gilluly v. City of Madison

• Citation: 24 N.W. 137,63 Wis. 518
• Parties: GILLULY v. CITY OF MADISON.
• Decision Date: 24 June 1885
• Court: United States State Supreme Court of Wisconsin

63 Wis. 518

24 N.W. 137

GILLULY

v.CITY OF MADISON.

Supreme Court of Wisconsin.

Filed June 24, 1885.

Appeal from circuit court, Dane county.

Smith & Rogers, for respondent.

R. M. Bashford, for appellant.

COLE, C. J.

The learned counsel for the defendant insists that the court below erred in refusing to give an instruction, asked on the part of the city, to the effect that it was not liable for any error or want of judgment upon which its system of drainage was devised, nor for any defect or want of efficiency in the plan of drainage adopted. The answer to this objection is that the plaintiff does not rest the liability of the city for the damage to his property on any such ground, as we understand the case. He does not claim that the system or plan of drainage adopted by the city was unsuitable or defective, and that he was thereby injured. It may well be the law, as claimed by counsel, that a municipal corporation is not liable for any error or want of judgment upon which its system of drainage of surface water may be devised, nor for any defect in the plan which its adopts. The common council must, from necessity, exercise its judgment and discretion in such matters, and should be at liberty to adopt what seems to be the best plan to accomplish the end, having regard to the means at the disposal of the city for the purpose of sewerage.

“When the injury is occasioned by the plan of the improvement, as distinguished from the mode of carrying the plan into execution, there is not ordinarily, if ever, any liability.” 2 Dill. Mun. Corp. § 1051. But, as we have said, the plaintiff does not rest his right of action on the ground that the plan of drainage adopted by the city was defective, and injured his property; hence, though the instruction was correct as an abstract proposition, it was not applicable to the case. Consequently it was not error to refuse it.

The next error assigned is the refusal of the court to give portions of the third and fourth instructions, and the entire sixth instruction. The proposition embraced in these instructions not given, is, in substance, that if plaintiff's premises were below the grade of the street, and the injury complained of was in any way occasioned by reason thereof, or if a greater quantity of surface water was thrown upon the premises than they would have received if raised to the proper grade, after the city had established it and constructed its system of drains and sewers, that then the city was not liable for such damage, it being the duty of the plaintiff to raise his premises to the proper grade. In support of the correctness of these instructions counsel quotes a portion of the section of Judge DILLON's work which we have above cited from. In that section the learned author has stated what he deems the result of the authorities on the question of municipal liability for injuries caused by surface water, in four general propositions. We have already given his second proposition. It may be well, in order to have the views of this eminent jurist on this question, to quote the rest of the section, which is as follows:

“ Third. But in the case last supposed there will be a liability, if the direct effect of the work, particularly if it be a sewer or drain, is to collect an increased body of water, and to precipitate it onto the adjoining private property to its injury. But since surface water is a common enemy which the lot-owner may fight by raising his lot to grade, or in any other proper manner, and since the municipality has the undoubted right to bring its streets to grade, and has as much power to fight surface water in its streets as the adjoining private owner, it is not ordinarily, if ever, liable for simply failing to provide culverts or gutters adequate to keep surface water off from adjoining lots below grade, particularly if the injury is one which would not have occurred had the lots been filled so as to be on a level with the street. The cases are not in harmony on the point last presented, but the above is believed by the author to be the correct doctrine. Fourth. There is a municipal liability where the property of private persons is flooded, either directly or by water being set back, when this is the result of the negligent execution of the plan adopted for the construction of gutters, drains, culverts, or sewers, or of the negligent failure to keep the same in repair and free from obstruction; and this, whether the lots are below the grade of the streets or not. The cases support this proposition with great unanimity.”

Now, when the facts of this case are considered, one can hardly fail to see that according to this statement of the law the city is liable for the injury complained of; for the gravamen of the complaint is--and there was evidence tending to prove it--the negligent and unskillful construction of the gutter along the plaintiff's premises, especially the failure of the city to keep the same clear from obstructions, so that the surface water would have a free passage-way through it. This is apparent from the allegations that the gutter nearest the plaintiff's premises, for a distance of 85 feet, was merely a blind ditch, the sides of which are laid up with quarry stone, without plaster or cement, to keep the water from percolating through it; that on account of the insufficient size of that portion of the gutter, and the rough and uneven material of which it is made, the short angle it makes where it intersects the north line of University avenue, and that the bed of the gutter is ascending instead of descending, the gutter is incapable of readily receiving and discharging the large quantity of water which is accumulated in time of...