Cain v. City of Jackson

• Citation: 169 Miss. 96,152 So. 295
• Decision Date: 29 January 1934
• Docket Number: 30917
• Court: United States State Supreme Court of Mississippi
• Parties: CAIN v. CITY OF JACKSON

152 So. 295

169 Miss. 96

CAIN v. CITY OF JACKSON

No. 30917

Supreme Court of Mississippi

January 29, 1934

Division A

Suggestion Of Error Overruled March 12, 1934.

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Action by Mrs. Zoola E. Cain against the City of Jackson. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

S. C. Broom and W. A. Shipman, both of Jackson, for appellant.

The court below erred in granting the instruction which tells the jury, as a matter of law, that Rocky Branch is a natural stream, "and that the defendant is not liable for damages for obstructions or debris in said stream which were not placed there by defendant, the city of Jackson, even though such obstruction or debris may have caused Rocky Branch to flood the property of the plaintiff herein."

I C. R. R. v. Wright, 135 Miss. 435, 100 So. 1.

The city of Jackson has utilized the natural water course as a part and parcel of its drainage system.

In Fewell v. Meridian, 90 Miss. 380, 43 So. 438, the court said that: "No matter who constructed the cross-pipe in the manhole, if the city assumed and exercised control of the manhole and the cross-pipe, and dealt with it as a part of its drainage system, the city is liable for any damage occasioned by such wrongfully constructed cross-pipe and manhole, if it has been duly notified and fails to correct the situation."

Emery v. City of Lowell, 104 Mass. 13; Taylor v. City of Austin, 32 Minn. 247; Chalkley v. City of Richmond, 88 Va. 402; Schoeder v. Barbaboo, 93 Wis. 95; Senheen v. City of Evansville, 140 Ind. 675; Hiram L. Hart v. City of Neillsville, 40 N.W. 699; 1 L. R. A. (N. S.) 952; Sinia v. L. & N. Railroad Co., 71 Miss. 547, 14 So. 87; Thompson v. Railroad Co., 104 Miss. 651, 61 So. 596; Y. & M. V. R. R. v. Sutton, 63 So. 672; Railroad Co. v. Scott, 110 Miss. 443, 70 So. 459.

A city is bound to make provisions for such floods as may reasonably be expected from previous experience, though at irregular and wide intervals of time.

City of Vicksburg v. Porterfield, 145 So. 355; Arndt v. City of Cullman, 132 Ala. 540, 31 So. 478; 10 Am. & Eng. Enc. Law, 243; 13 Am. & Eng. Enc. Law, 714; 24 Am. & Eng. Enc. Law (1 Ed.) 948; Ry. Co. v. Bridges, 86 Ala. 448, 449, 5 So. 864, 11 Am. St. Rep. 58.

A city must exercise reasonable care in such cases.

Nesbitt v. City of Greenville, 69 Miss. 22, 10 So. 452, 30 Am. St. Rep. 521.

The city must maintain the efficiency of its drains. It is the common knowledge of all persons having experience in such matters that drains constructed on streets and highways have a tendency to become obstructed, and to fill in so as to obstruct the full capacity of the drainage provided. This situation must be kept in view and remedied from time to time so as to maintain adequate drainage in each case.

Whitfield v. Meridian, 66 Miss. 570, 6 So. 244, 4 L. R. A. 834, 14 Am. St. Rep. 596; Fewell v. City of Meridian, 90 Miss. 390, 43 So. 438, 9 L. R. A. (N. S.) 775.

W. E. Morse, of Jackson, for appellee.

A municipality is not liable for damages resulting from obstructions in a stream flowing through a municipality which were not placed there by the municipality.

Mayesville v. Brooks, 145 Ky. 526, 140 S.W. 665; 6 McQuillin Municipal Corporation (2d), sec. 2875; I. C. R. R. v. Wright, 135 Miss. 236, 100 So. 1.

OPINION

Cook, J.

This is an action brought by the appellant, Mrs. Zoola E. Cain, against the city of Jackson to recover damages alleged to have resulted from water overflowing her premises, which lie on and along the banks of Rocky Branch creek, a natural watercourse which flows under South Gallatin street of said city. The negligence charged was the alleged failure of the said city to provide and maintain a sufficient and adequate outlet under South Gallatin street, one of the paved public streets of the city, to care for the flood waters flowing into and down this stream at times of heavy and excessive rains. Upon instructions defining the rights and duties of the city with reference to drainage or outlets under the said street, the jury returned a verdict in favor of the city, and from the judgment entered this appeal was prosecuted, the errors assigned being alleged errors in granting instructions requested by the appellee and refusing certain instructions requested by appellant.

The evidence fully supports the allegations as to the flooding of the premises by backwater from this creek. Under the paved street known as Gallatin street, the city had provided what is called a double-barrel culvert, one culvert having an opening of thirty-five square feet and the other thirty-seven and eight-tenths square feet. Certain civil engineers testified that the double-barrel method of construction of these culverts was proper from an engineering standpoint, on account of the necessity of having a center wall to support the bridge above. They further testified that, according to approved formulas, the area of the openings provided thereby was more than sufficient to take care of the drainage of the entire area which drained in this creek, but admitted that the center wall or connection between the culverts would have a tendency to obstruct the passage of logs, shrubs,...