City of Denver v. Capelli

• Decision Date: 01 December 1877
• Parties: CITY OF DENVER v. CAPELLI.
• Court: Colorado Supreme Court

4 Colo. 25

CITY OF DENVER v. CAPELLI.

Supreme Court of Colorado

December, 1877

Error to Probate Court of Arapahoe County.

ACTION on the case; plea of the general issue. The defendant in error had judgment in the court below for seven hundred and fifteen dollars.

Mr CHARLES S. THOMAS, for plaintiff in error.

Messrs PATTERSON & CAMPBELL, for defendant in error.

THATCHER C. J.

The defendant in error was the owner of a two story brick building, situate on the corner of First and Fifteenth streets, in Kasserman's addition to the city of Denver.

This action was commenced to recover damages, which, it was alleged, were sustained by her, by reason of the overflow of her premises in June, 1874, May, 1875, and August, 1875, and the consequent destruction of certain personal property contained in the cellar of the building, and injury done to the building itself. It is alleged in the declaration, that these injuries resulted from the carelessness and negligence of the city, in the construction of a drain or sewer at the intersection of First and Fifteenth streets, and in the failure of the city to keep the same open and free from all impediments.

The law confers a power, judicial in its nature, upon the city to construct all necessary drains and sewers; but until that power is exercised it imposes no legal duty upon the city authorities. Session Laws of 1866, p. 100.

The distinction between the power of the city, and its legal, as separate from its political duty, must be kept steadily in mind. As long as the city authorities fail or refuse to exercise their discretionary powers, no liability attaches but if that power be exercised, as is sought to be proved in this case, by the adoption of a partial system of drainage, to the strict performance of whatever ministerial duties may be incident thereto, the city is bound; and for any failure in that respect it cannot escape liability. But for a mere error of judgment in the plan or system adopted, it cannot be made to respond. If the municipality fails to act, or if acting, it adopts a plan, however inefficient, and constructs its drains in conformity thereto, and injury results to an individual in consequence of the plan being defective, or of the drains not being of sufficient size to accommodate all the water, which (if the drains were larger) would naturally flow through them, there is no resulting liability to the city. If, however, a drain be constructed, whether of large or small dimensions, the duty of the city at once arises to keep it in repair. To the extent of its capacity it must be kept efficient. It is equally true that the city is liable for damages resulting from the unskillful or negligent manner of constructing its drains or sewers. These principles are, it is believed, in accord with the weight of authority and the better reason. Mills v. The City of Brooklyn, 32 N.Y. 489; Carr et al. v. The Northern Liberties, 35 Pa. 324, City of Atchinson v. Challis, 9 Kans. 603; Judge v. City of Meriden, 38 Conn. 90; The City of McGregor v. Boyle, 34 Iowa, 268; Wharton on Negligence, s 260; Dillon on Mun. Corp., s 802, et seq.; Shearman & Redfield on Negligence, s 127.

In the Pennsylvania case cited, supra, Chief Justice LOWRIE speaking for the court, says: 'Any street may be complained of as being too steep or too level; gutters as being too deep or too shallow, or as being pitched in a wrong direction; and there may be evidence that these things were carelessly resolved upon, and then a tribunal that is foreign to the municipal system, will be allowed to intervene and control the town officers. And the end is not yet; for if a regulation be altered to suit the views of one jury, the alteration may give rise to another case, in which the new regulation will be likewise condemned. This theory is so vicious that it cannot possibly be admitted.' The defendant objected and excepted to the introduction of evidence in regard to the dimensions of the drains, the fall given them, and the manner in which they were connected at the point of intersection. It...