Chan Sing v. City of Portland

• Decision Date: 09 April 1900
• Citation: 60 P. 718,37 Or. 68
• Parties: CHAN SING v. CITY OF PORTLAND.
• Court: Oregon Supreme Court

60 P. 718

37 Or. 68

CHAN SING v. CITY OF PORTLAND.

Supreme Court of Oregon

April 9, 1900

Appeal from circuit court, Multnomah county; Alfred F. Sears, Jr. Judge.

Action by Chan Sing against the city of Portland. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This is an action against the city of Portland to recover damages for an injury to plaintiff's property from an overflow of Tanner creek caused by the alleged negligence of the defendant in not exercising due care and caution to keep open and free from obstruction the intake of Tanner Creek sewer. Tanner creek is a natural water course, with well-defined banks and channels. Some time prior to the injury complained of, the city diverted the water of the creek from its natural channel in and through a sewer known as "Tanner Creek Sewer." As an auxiliary thereto, it constructed a drift dam in the channel of the creek, some two or three hundred feet above the head of the sewer, to protect it from logs drift, and débris. About 2 o'clock in the afternoon of November 16, 1896, the city authorities were notified that owing to the storm then prevailing, the sewer was liable to become obstructed and cause an overflow of the creek. It thereupon put two men at work at the head of the sewer to keep it free from obstructions, which they succeeded in doing until about 7 or 8 o'clock in the evening, when logs and débris which had accumulated above the drift dam came down to the head of the sewer in a mass and stopped up the intake thereby causing the waters of the creek to overflow its banks and inundate the plaintiff's garden; and this is the injury for which he seeks to recover damages. The complaint after alleging the construction of the sewer by the city, avers "that on or about the 16th day of November, 1896, the said defendant, knowing that the said sewer was too small to carry off the water emptying into it from Tanner creek, and that in consequence thereof the said creek would overflow its banks, and that the said sewer would overflow, and that the said water would be precipitated onto the lands and property lying on the line of said sewer on said Jefferson street, and would damage the said lands and property, and knowing that the said Tanner creek carried in its stream wood, stones, rubbish, and débris which would close up the head of said sewer, and that the head of said sewer was not sufficiently maintained and protected by the said defendant so as to prevent the said head from being clogged and dammed up, and that when it became so clogged up the said water from said stream would be precipitated upon the lands and into the buildings along the line of said sewer, and would damage the same, the said defendant carelessly and negligently at said time failed and neglected to enlarge the said sewer and the head thereof, and carelessly and negligently permitted the head of said sewer to become clogged and dammed up, and carelessly and negligently failed to keep the head of said sewer open so as to receive and carry away the waters of said Tanner creek which would empty into it, in consequence of which the said débris, logs, and rocks clogged and dammed up the head of said sewer, and the said waters were prevented from emptying into said sewer, and the said sewer overflowed, and the water from the said Tanner creek was precipitated upon the vegetable gardens of the said plaintiff, and overflowed, washed away, and destroyed the beds of said garden," to his damage in the sum of $498. The answer denies the negligence charged, and affirmatively alleges that the inundation and overflow were caused by an extraordinary and unusual storm,...