City of Covington v. McKinney

• Decision Date: 10 March 1936
• Citation: 263 Ky. 131,92 S.W.2d 1
• Parties: CITY OF COVINGTON v. McKINNEY et al.
• Court: Kentucky Court of Appeals

92 S.W.2d 1

263 Ky. 131

CITY OF COVINGTON v. McKINNEY et al.

Court of Appeals of Kentucky

March 10, 1936

Appeal from Circuit Court, Campbell County.

Action by Claude McKinney and another against the City of Covington. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Ralph P. Rich, of Covington, for appellant.

Frank V. Benton, of Newport, and M. L. Harbeson, of Covington, for appellees.

RICHARDSON Justice.

To recover damages to his residence, its contents, and the yard to his residence, of the city of Covington, caused by the city maintaining inadequate ditches on its premises and permitting the same to become stopped up, thereby causing the water of ordinary rainfall, flowing from its premises, to be accelerated and concentrated onto their premises, Claude and Anna McKinney brought this action. On a trial before a jury a verdict of $1,000 was returned in their favor on which a judgment was entered, and from which this appeal is prosecuted.

For their cause of action they set forth the metes and bounds of the lot on which their residence is situated and describe its location relative to the land of the city on which it maintains reservoirs for the purpose of furnishing the inhabitants of the city with water. They allege that the land on which the reservoirs are located lies in the rear of theirs and slopes toward it. The city had constructed and maintained walled ditches to collect and drain the surface water and sewage from its land; one, immediately in the rear of their residence; another, on their premises, under the dwelling. The basis of their recovery is, the ditches were inadequate to carry the surface water collected therein from the city's premises and the city had permitted them to become stopped up, thereby causing an overflow of their premises, during ordinary rains. They confine their recovery to rainfall on certain dates during five years next before the commencement of the action. As a defense the city traversed the allegations of the petition as amended and alleged that the water which overflowed the McKinneys' premises was caused by the construction of the south side of the Alexandria Turnpike immediately in front of the McKinneys' property, where a fill in the roadway was made over and across a deep ravine, a natural drainage and direct outlet for the water entering out of the south end of the culvert under the surface of the Alexandria Turnpike. Also the construction on the north side of the Alexandria Turnpike, a sewer or a drain leading across it immediately in front of the McKinneys' property into a culvert which was inadequate and insufficient to carry the water from the drain, thereby causing it to flood the McKinneys' property as stated in their petition. It further pleaded that "the ditches of the city were constructed by it more than forty years ago and were and constituted a permanent structure and have been continuously used since and maintained by the city at the location stated in the plaintiffs' petition; that their construction and maintenance was under a claim of right, adversely to the McKinneys and those under whom they claim title to their property."

The city offered to introduce as evidence the United States Weather Bureau's reports of rainfall in that vicinity during a portion of the time for which the McKinneys sue, and to which the evidence was directed. The court refused to permit these reports to be read to the jury. Of this the city complains. Conceding that they were competent and should have been admitted, it must likewise be conceded that their contents merely corroborate the oral testimony in the city's behalf, and therefore were merely accumulative and not decisive of any issue submitted to the jury. Hence, the action of the court in reference thereto, if in error, was harmless, and not so prejudicial as to justify a reversal.

It requested the court to give to the jury an instruction directing it, if it believed from the evidence that it had been in "the actual adverse use of the ditches over under and across the land of the plaintiffs, continuously and uninterrupted for fifteen years or more before the 23d day of September, 1933, claiming the same openly and notoriously as its own adversely to all others, then and in that event the law is for the defendant and it should so find." It argues that on the pleadings and the evidence it was the duty of the court to give this instruction and its refusal demands a reversal.

In support of this argument it cites to us and relies on City of Ludlow v. Broderick, 181 Ky. 123, 203 S.W 1082, 1083; Walley v. Wiley; 56 Ind.App. 171, 104 N.E. 318 319; Seigmund v. Tyner, 52 Ind.App. 581, 101 N.E. 20, 21; Zerban v. Eidmann, 258 Ill. 486, 101 N.E. 925. The principles enunciated in those cases are, the lower is subject to the servitude of receiving the natural and ordinary flow of...