Adams v. Oklahoma City
| Decision Date | 19 March 1908 |
| Citation | 95 P. 975,20 Okla. 519,1908 OK 39 |
| Parties | ADAMS v. OKLAHOMA CITY. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where a city, in the exercise of its lawful authority (section 443 Wilson's Rev. & Ann St. 1903), first establishes a grade on a street, and grades same with reasonable skill and care it incurs no liability for consequential damages to abutting or adjacent proprietors.
[Ed Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations,§§ 925-928.]
It was the intention of the Legislature (section 443, Wilson's Rev. & Ann. St. 1903) to provide compensation only for owners of abutting property having permanent improvements erected thereon, where change was made in the permanent grade previously established by lawful authority.
[Ed Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations,§§ 925-928.]
Error from District Court, Oklahoma County; J. K. Beauchamp, Judge.
Action by M. A. Adams against the city of Oklahoma City. Judgment for defendant, and plaintiff brings error. Affirmed.
On the 30th day of October, 1904, plaintiff filed her petition in the district court of Oklahoma county, Oklahoma Territory against the city of Oklahoma City; the parties in the court below occupying the same relative positions in this court. Plaintiff alleged that the defendant was an organized and existing municipal corporation under the laws of said territory of the first class, containing a population in excess of 3,000; that she was the owner of lots numbered 4, 5, and 6, in block numbered 51, in Maywood addition to said city, said lots being bounded on the north by Fourth street and on the west by Stiles avenue; that before any improvements were made on said lots the grades on said streets along the north and west of said lots were permanently established by the city authorities, and afterwards a building was erected on plaintiff's lots conforming to said grades, and above the lines of such grades so permanently established by said city authorities; that a natural water course or ravine ran from the north to the south near the east end of said lots, which carried off all the surface water that fell, and drained said lots, leaving them dry, although they were in a low place; that said lots were filled to conform to said grades, and, had said streets been left as first established, said lots would have been dry, and all surface water would have been drained therefrom into the gutters of the streets, and would have been carried off without flooding the property of the plaintiff, which was used as a residence, having five rooms and a large basement, extending under the whole of said house, the same being divided into two rooms, one a storeroom and the other being used for a kitchen and dining room, there being three rooms above said basement which were living rooms; that afterwards, in the year 1904, said city caused the grade of said Fourth street along the north line of said lots, and said Stiles avenue along the west, to be raised to the height of 18 inches above said first grade, and caused said streets to be filled to the height of said last grade, leaving the said lots and residence of the plaintiff about 15 inches below the grade of said street in a depression, where the flood waters had no means to flow off and no outlet to escape, and same flowed on and over plaintiff's lots, the water being dammed up without leaving any outlet for same across the east end of said lots; that before making said change in said grade the defendant wholly failed and neglected to make due compensation as required by law for damages sustained by reason of said changes. Plaintiff further alleged that about the 10th of June, 1904, a severe rain fell in said city, and by reason of the unlawful change in said grade in filling or grading said streets the water was dammed up in said water course, causing a large body of water to form in said street and break through the grade therein, and by reason thereof the property of plaintiff was overflowed, and her household goods and personal property damaged to the value of $115.80, and said house and lots have been damaged by reason of the change in the grade of said streets in the sum of $1,500; the sum total of said damages being $1,615.80. The defendant, on the 24th day of October, 1904, appeared through its attorney and answered, admitting that it was a municipal corporation and that the plaintiff was the owner of the lots as alleged in her petition, but otherwise denied all the allegations of said petition.
The evidence on the part of the plaintiff was to the effect that said lots faced west on Stiles avenue, a street running north and south in Maywood addition, and were bounded on the north by Fourth street, running east and west, and on the east by an alley running north and south. On said lots plaintiff had erected two houses, one near the west end and the other near the center thereof, near what had the appearance of a ravine or drain according to the plaintiff's testimony, which was in words and figures as follows:
This ravine or draw headed near Lincoln schoolhouse, about a half a mile north of the premises in controversy, came down from the north, and entered the block north of the one in which plaintiff's lots were situated, about the center thereof east and west, and came down through said block near the center, and crossed said Fourth street near the alley at the east end of plaintiff's lots, and went on south to the back end of her lots until it reached the south line thereof, where the same had been deflected into a ditch, extending along the south line of her lots out into Stiles avenue, which was at the west end of said lots, where the water flowed into said avenue. Said depression or draw was not over one-half mile in length, and drained an area not to exceed 160 acres of surface waters caused by rains falling thereon. Said draw or drain had changed its place at times, occasioned by the improvement of lots. There is nothing to show that the draw existed prior to the founding or extending of the limits of the city. It is probable that the laying off and improving of the lots, and the consequent throwing off of surface water, produced this draw or drain, and the consequent change of location of same at times. There was a channel or ditch across the block north of the one on which plaintiff's lots were situated, and also across Fourth street at the east end of plaintiff's lots, to wit, in some places to a width of about 10 feet, and in some places to a depth of about 6 feet; but at various places wagons and vehicles could cross with convenience. Water never stood in this ravine, draw or drain any length of time, but ran off rapidly immediately after each rain. The proof tended to show that the ditch on the south of said lots was of sufficient capacity to carry off the surface water of ordinarily heavy rains without material injury to her lots; that prior and up to the spring of 1904 some improvement had been made upon said street, and a bridge spanning said draw or ravine had been sufficient to permit all surface water in time of rains to pass thereunder has been constructed. Plaintiff had caused the west portion of her lots to be filled up to a height above Fourth street as it then existed, though the evidence shows that no grade was ever established by the authority of the city until the spring of 1904, and that a portion of her lots were comparatively dry, and had never been injured by any flood water or heavy rains, although said lots were on the lowlands. In the spring of 1904 defendant established a grade on Fourth street by ordinance, the first grade established on the authority of said city, which raised the grade on said Fourth street to a height of about 4 to 6 feet above the level of plaintiff's lots; and the defendant caused said street to be filled to the height of said grade. The bridge across said draw or ravine was taken out, and a dirt embankment thrown up, and no provision for the flow of such surface water accumulating north of Fourth street; it appearing that it was the intention to divert said surface water as flowed down from the north around at the north end of Fourth street to Stiles avenue west of plaintiff's lots, where it would flow south down said avenue to the lowlands southward, thus taking it out of its usual course down said draw.
On the 11th day of June, 1904, after the grade had been established by ordinance under...
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