Arndt v. City of Cullman

Decision Date13 February 1902
Citation31 So. 478,132 Ala. 540
PartiesARNDT v. CITY OF CULLMAN.
CourtAlabama Supreme Court

Appeal from circuit court, Cullman county; H. C. Speake, Judge.

Action by Frank Arndt against the city of Cullman. Judgment for defendant. Plaintiff appeals. Reversed.

J. B Brown and A. Ahlrichs, for appellant.

Brown &amp Curtis, for appellee.

HARALSON J.

The complaint consisting of two counts originally, was subjected to demurrer on numerous grounds which were sustained. Thereupon, plaintiff amended by adding six other counts, to which defendant demurred on 36 grounds, all of which were sustained. The plaintiff allowed to amend, added eight other counts, to which defendant's counsel interposed 73 grounds of demurrer, which were sustained as to all the counts, except the fifteenth and sixteenth. To these two counts, defendant filed seven special pleas, besides the plea of the general issue. Demurrers were interposed by plaintiff to all the special pleas, which were sustained except as to the fourth. Thereupon, the plaintiff took issue, and the case was tried upon the plea of the general issue, and on issue joined on the fourth plea.

Some of the counts proceed for the claim of damages on the alleged negligent construction of a sewer, in that it diverted the water from its natural flow and precipitated it onto plaintiff's lot, doing it great damage; others for its negligent construction, in that it was too small to carry off the waters let into it, and they were backed onto plaintiff's lot, and still others, that the city allowed the sewer to fill up and become choked with sand, gravel, and dirt, causing the water to back onto plaintiff's lot doing the damage complained of, of which condition the city had notice and did nothing to prevent it.

The charter of the city is a public act of which courts take judicial notice, as though it had been set out in each count in the declaration. Smoot v. Mayor, etc., 24 Ala 112, 121; Albrittin v. Mayor, etc., 60 Ala. 492, 31 Am. Rep. 46.

The charter of Cullman provides, that the mayor and councilmen "shall have full and complete power," among other things, "to have free power and authority to cause and procure all streets, alleys, and sidewalks now established or hereafter to be established in said city to be graded, leveled, curbed," etc.; "* * * to have all such power and authority as may be needed to compel the abutting property owners to pay all or such portion of the expense and costs as they may decide, of the same, and on failure or refusal of the property owner to pay such amounts, to tax the same against the property, which tax shall have the lien of and be enforced and collected as other city taxes"; and "to establish, keep in repair, regulate and control drains, gutters, sewers, aqueducts and reservoirs, and to compel lot owners to drain the same [the lot], and ditch it [the lot] at the expense when the owner fails or refuses after five days' notice to drain or ditch it [the lot]," etc. "To erect, establish and keep in repair bridges and culverts, and to adopt regulations necessary for the same." Acts 1890-91, p. 160, § 19, subds. 11, 12, 35.

In section 24 of the charter, the mayor and councilmen are given the authority to levy and collect each year upon all real and personal property and subjects of state taxation in said city, a tax not exceeding one-half of 1 per cent. of the value of such property or subjects of taxation during the preceding year, etc.

The city charter having devolved on the corporate authorities the duty of causing streets and sidewalks in said city to be graded and leveled, and to establish, keep in repair, regulate and control drains, gutters, sewers, aqueducts, etc., or cause this to be done, a duty to these ends was thus imposed on the city, and it was only necessary to aver in the complaint, the existence of this duty by way of inducement, which is sufficiently certain when it is averred, generally, that it was the duty of the city to keep the sewer in repair or proper condition, or that it was legally bound to do so, or some such equivalent averment. City Council v. Wright, 72 Ala. 411, 47 Am. Rep. 422.

It was incumbent on the plaintiff, in order to maintain the action, to aver and prove express notice of the alleged defect in the sewer, or facts from which it might be inferred that the corporate authorities were properly chargeable with constructive notice thereof. "Constructive notice of such defect [however] may be inferred from its notoriety, and from its continuance for such length of time as to lead to the presumption that proper officers of the town or city did in fact know, or with proper vigilance and care might have known the fact." City Council v. Wright, supra, and authorities there cited. The facts stated in some of the counts of the complaint, as we shall see, were sufficient as averments of implied or constructive notice. City Council v. Wright, supra; Lord v. City of Mobile, 113 Ala. 360, 21 So. 366.

In City of Eufaula v. Simmons, 86 Ala. 515, 6 So. 47, it was held, that if a municipal corporation in the construction of ditches and sewers in the improvement of its streets, causes a large quantity of rain water, which naturally flowed in another direction, to be diverted to flow on the plaintiff's property in destructive quantities, the defendant corporation would be liable in damages for just compensation, whether the work was done negligently or not, and a fortiori, when such ditches and drains have been constructed in a negligent manner. In this respect a corporation stands on the same footing as a private individual, and incurs the same liability. 10 Am. & Eng. Enc. Law (2d Ed.) 350, 352.

"The accumulation in one channel of a large volume of water by the act of the city, places upon it the duty to see to it that suitable provision is made for the escape of the water into natural water courses or other channels which will carry it off without injury to private property; and if by reason of the insufficiency of the drain or sewer provided, the accumulated waters are cast upon private property to its injury, the city must respond. * * * If surface water is collected in gutters and made to flow to the mouth of a sewer, where by reason of the insufficiency of the sewer, it accumulates in large quantities and thence flows back upon private property, the municipality must respond in damages." 24 Am. & Eng. Enc. Law, 946, 947.

"A city has no more right to plan or create an unsafe and dangerous condition in one of its public streets, than it has to plan or create a public nuisance;" and it may be added, that it has no such right in respect to the creation and maintenance of drains and sewers that are insufficient and damaging to abutting property owners. Mayor, etc., v. Lewis, 92 Ala. 352, 9 So. 243; Same v. Starr, 112 Ala. 98, 20 So. 424; Albrittin v. Mayor, etc., 60 Ala. 486, 31 Am. Rep. 46.

In accordance with these principles it was held in Railroad Co. v. Shahan, 116 Ala. 302, 22 So. 509, that a complaint which shows the situation of plaintiff's property, so as to be overflowed from a culvert and damaged and avers that the culvert was insufficient for the passage of water during rainfalls, and that defendant negligently allowed said culvert to fill up partially by the washing of sand and loose rock in it, which further obstructed the free passage of water through said culvert, by...

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