City of Ardmore v. Orr

• Decision Date: 21 January 1913
• Docket Number: Case Number: 2086
• Citation: 129 P. 867,1913 OK 50,35 Okla. 305
• Parties: CITY OF ARDMORE v. ORR.
• Court: Oklahoma Supreme Court

1913 OK 50

129 P. 867

35 Okla. 305

CITY OF ARDMORE v. ORR.

Case Number: 2086

Supreme Court of Oklahoma

Decided: January 21, 1913

Syllabus

¶0 1. MUNICIPAL CORPORATIONS--Street Grading-- Surface Water--Injury to Abutting Premises--City's Liability. Where a city in grading a street and its cross-streets causes the surface waters on said cross-streets, flowing into the same from adjacent territory, to be diverted from their natural course, and to be collected and carried together with the waters of the main street to a low point on said street, and negligently fails to provide sewers as an outlet for said waters, or in providing sewers, negligently provides sewers inadequate for an outlet for said waters, and thereby causes said waters so collected and conveyed to such point to back upon and overflow abutting premises which are four inches above the grade established by the city, and over which said waters did not theretofore flow, the city is liable to the owner of such abutting property for the damages caused thereby.

2. TRIAL--Time of Trial--Issues. Section 5834, Comp. Laws 1909, provides when actions are triable. Under its provisions, when a demurrer to a petition is overruled, but it is not adjudged frivolous and leave to answer is given, the case is not triable upon issues of fact until ten days after the filing of the answer; and it is error to compel, over the objection of a party to the action, a trial of the case on the date such demurrer is overruled and the answer filed.

3. DAMAGES--Real Property-- Permanent and Temporary Injuries. For negligent injuries to realty which result from a cause susceptible of remedy or abatement, the owner is entitled to recover therefor only such damages as had accrued on account of the impaired or lost use of his property up to the time of the commencement of his action. For injuries resulting from permanent cause, the owner may recover in a single action his entire damages, to wit, that amount which represents the permanent depreciation of the realty in value in consequence of the injury.

4. SAME. When a cause of an injury is abatable, either by an expenditure of labor or money, it will not be held permanent.

5. MUNICIPAL CORPORATIONS -- Defective Sewers -- Injury to Abutting Property-- Damages. The owner of a lot sued a city for damages resulting from the negligent construction of sewers inadequate to carry off storm and surface waters which the city had, by grading its streets, diverted from their usual course, and brought to a point near plaintiff's property. The volume of waters, being too great to be discharged through the sewers provided, were forced back upon plaintiff's property, thereby damaging and destroying certain personal property, and rendering less suitable for business the buildings thereon. The defect in the sewers being remedial by expenditure of money and labor, it was error for the court to authorize the jury by its instructions to consider as an element of plaintiff's damages future loss of rents and depreciation in the value of the real estate.

Error from District Court, Carter County; W. L. Barnum, Assigned Judge.

Action by J. T. Orr against the City of Ardmore. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Defendant in error, hereinafter called plaintiff, filed his petition in the district court of Carter county on the 17th day of October, 1908, against plaintiff in error, hereinafter called defendant or the city, in which he alleges that he is the owner of lot No. 20, in block 233, situated and fronting on what is known as Caddo street, in the city of Ardmore, an incorporated city of the first class, and that said property was damaged on account of certain acts of the city which, as alleged, are, in substance, as follows: Situated on plaintiff's lot are three buildings, one of which is a frame and the other two are brick. Prior to 1907 the surface waters falling and flowing on Caddo street were drained off through two stone sewers constructed under a railway track on the east side of Caddo street. The opening of one of the sewers was at a point about 150 feet from where Main street intersects Caddo street, and the opening of the other was at a point near where Fourth avenue intersects said street, and, until the acts of the city hereinafter mentioned, these sewers were sufficient to drain thoroughly all the waters flowing into Caddo street. Caddo street, prior to 1907, was so graded that the low point of said street is at a point where the first-named sewer opens into said street, and all the waters flowing from the south and for a number of blocks from the north on said street flow to that point. During the spring and summer of 1907 the city graded and paved Caddo street, and closed up the opening in the sewers near Fourth avenue, and diverted the waters which naturally run through that sewer and turned them so they run down to the opening of the sewer near Main street. At the same time the city made the opening of the last-named sewer so small that it was not capable of conducting and carrying off all the waters that flowed thereto. During the same spring and summer the city graded various streets which cross Caddo street from east to west in such a way that it diverted all the waters which run down said cross-streets, and threw them into Caddo street. Prior to this time the natural drainage took care of the waters running down said cross- streets, but by reason of the grading of such streets the waters therein were turned into Caddo street and forced to find their outlet through the above- mentioned sewers, which were not large enough for that purpose. As a result thereof, when a rain occurred in the early part of the year 1908, the waters accumulated on Caddo street at the low point, and overflowed plaintiff's property. Plaintiff had constructed his sidewalks and his buildings at a grade about four inches higher than the grade required by the survey of the city, but the waters nevertheless overflowed his property and damaged same. The municipal authorities of the city, after having been notified by plaintiff of the insufficiency of the sewers and the effect on the grading of the streets upon plaintiff's property, causing it to be overflowed and damaged, failed and refused to correct same. Plaintiff alleges that one of his buildings is occupied by himself for bottling works purposes, and that a considerable amount of his property situated in this building was either damaged or destroyed by the flood waters, in the amount of $ 50; that the other two buildings situated on said lot were rented by him to parties for business houses; that, on account of the constant danger of overflow, his tenants refused to remain in the property; that he lost rents on said buildings; and that the same have been rendered practically worthless, and he is unable to rent same at any price, and he prays for damages in the sum of $ 2,500. After defendant's demurrer to this petition was overruled, it filed an answer, which, after admitting certain allegations of the petition, denies that prior to the grading of Caddo street and the construction of the improvements thereon named in plaintiff's petition there were sufficient curverts to carry off all the waters on that street during unusual rains and cloudbursts. It admits the paving of the streets, but denies it negligently and carelessly closed up or reduced the size of the sewers, as alleged in plaintiff's petition, or that the waters have so accumulated upon Caddo street as to exceed the capacity of said sewers. It alleges that the grading done by it was under the supervision of a skillful engineer, and that all said work was done in a skillful manner; and that the city had not been guilty of negligence in the construction of the sewers or in the paving of its streets, and made other allegations of defense which are not necessary to be stated.

A trial to a jury resulted in a verdict and judgment for plaintiff in the sum of $ 465. It is to reverse that judgment that this appeal is prosecuted.

J. B. Moore, for plaintiff in error.

HAYES, C. J.

¶1 Defendant's first assignment of error complains of the action of the court in overruling its demurrer to plaintiff's petition. The gist of plaintiff's cause of action is summed up in his petition in the last paragraph as being the wrongful acts, negligence, and carelessness of defendant in closing up one of the storm sewers, and reducing the size of the other so as to make it too small to carry off the waters which the grading of Caddo street concentrated at that point, and which resulted from diverting a large part of the surface water from its natural drainage on the cross-streets into Caddo street.

¶2 This court has had occasion to consider and discuss the right of a proprietor under the rule at common law to divert or fight back surface water from his premises, and the conclusion of this court is that the rule supported by the weight of the American authorities from states in which the common-law rule prevails, as well as by some of the recent English cases, is that one may not in diverting surface water from its usual and ordinary course collect and convey by embankments, ditches, or artificial channels such water to the premises of another and therefrom permit it to overflow the lands of such proprietor, which, before the construction of the roads, ditches, or artificial channels, it did not overflow. Chicago, R. I. & P. Ry. Co. v. Johnson, 25 Okla. 760, 107 P. 662, 27 L.R.A. (N.S.) 879; Chicago, R. I. & P. Ry. Co. v. Davis, 26 Okla. 434, 109 P. 214.

¶3 In Town of Norman v. Ince, 8 Okla. 412, 58 P. 632, the act of the city complained of was that it had carelessly and negligently constructed a standpipe adjacent to plaintiff's property which overflowed and discharged water on plaintiff's premises, by reason of which the premises became worthless. The city defended upon the ground that as a municipal corporation it was acting under ...