City of Ft. Wayne v. Coombs

Decision Date16 June 1886
Citation7 N.E. 743,107 Ind. 75
PartiesCity of Ft. Wayne v. Coombs and others.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Allen superior court.

Henry Colerick, W. G. Colerick, and Allen Zollars, for appellant.

Coombs, Bell & Morris, for appellees.

Elliott, J.

There are two paragraphs in the appellees' complaint, both seeking a recovery for injuries caused by a defective sewer. The difference in the paragraphs is that one alleges negligence in constructing the sewer, and the other alleges negligence in maintaining it. We shall not notice all of the objections to the complaint discussed by counsel, for we find, upon an examination of the record, that many of them are based upon a mistake as to its allegations.

We concur with counsel that, where negligence is the issue, the plaintiff must show that he was free from contributory fault, and that this is so whether the action is for injuries to person or property. The decision in Roll v. City, 52 Ind. 547, on this point, is in conflict with the rule which has long prevailed in this court, and that case cannot be regarded as well decided. While it has not been in terms overruled upon this point, it has been in effect overruled by decisions which broadly and explicitly deny the doctrine which it asserts. Lyons v. Terre Haute, etc., R. Co., 101 Ind. 419;Wabash, etc., Ry. Co. v. Nice, 99 Ind. 152;Stevens v. La Fayette, etc., R. Co., Id. 392; Cincinnati, etc., Ry. Co. v. Hiltzhauer, Id. 486, see page 490; Wabash, etc., Ry. Co. v. Johnson, 96 Ind. 40;Louisville, etc., Ry. Co. v. Lockridge, 93 Ind. 191, and cases cited page 192; Pennsylvania Co. v. Gallentine, 77 Ind. 322. To the cases we have cited many might be added, but it is not thought necessary, as the principle which they assert is a familiar one, and is decisively against the doctrine of Roll v. City; for the sole foundation of such an action as this is the negligence of the municipal corporation, and the case is a pure type of action for the redress of injuries resulting from negligence. The principle so long and so firmly established inexorably demands the conclusion that, in actions against municipal corporations for injuries resulting from the negligent construction or maintenance of sewers, the plaintiff must show that he was free from contributory negligence.

We cannot assent to counsel's assumption that the complaint does not aver that the plaintiffs were free from contributory fault. It is the rule in this state that a general allegation upon this subject is sufficient, and there is here such an allegation so framed as to cover all the acts, injuries, and losses described in the complaint. We can find nothing in the complaint which is inconsistent with the general averment that there was no contributory negligence.

Where a municipal corporation constructs a sewer, it is bound to use ordinary care and skill, and it is not necessary that it should be averred that the corporate authorities had notice of defects caused by want of care and skill in doing the work. The doctrine that it must be shown that the corporation had notice of defects does not apply to defects in the work of constructing the sewer. Where a city undertakes to construct a sewer, and does it negligently, it is liable for injuries resulting from such negligence without proof that it had notice of the defects. 2 Dill. Mun. Corp. (3d Ed.) § 1024. Where a sewer is constructed with care and skill a municipal corporation is liable for injuries for negligently failing to keep it in repair; and where it is suffered to remain out of repair for such a length of time as that it was the duty of the corporate authorities to take notice of its condition, the law will charge the corporate officers with notice. In this case the complaint charges that the sewer was suffered to remain out of repair for two years prior to the injury done to the plaintiff's property, and there can be no doubt that this was sufficient to charge the corporation with notice. There are many cases holding that notice will be implied where a sewer or a street is suffered to remain in a defective condition for a much shorter period of time. City of Madison v. Baker, 103 Ind. 41; S. C. 2 N. E. Rep. 236; 2 Dill. Mun. Corp. (3d Ed.) § 1025.

It is alleged in the fourth and fifth paragraphs of the appellant's answer that it had no authority to construct a sewer under the Wabash & Erie canal without the permission and in the manner prescribed by the officers of the canal company; that it was necessary to provide an outlet for the sewer to cross under the canal; that the appellant did secure permission to carry the sewer under the canal, and did construct it according to plans and specifications prepared by the canal company's engineer. To these answers the appellees replied that, at the time of the construction of the sewer in Clinton street, that street was a public street, and had been for more than 20 years, and that it crossed the canal at right angles; that the sewer was constructed on the line of the street to the canal; that the city, at the time of the construction of the sewer on Clinton street, had constructed other sewers, and in order to provide an outlet for these sewers it was necessary to cross the canal. The court overruled a demurrer to the reply.

The right of the public in the street was not lost by the occupancy of the land by the canal company. The right of the public to make use of the street in any lawful manner that did not injure the canal company, or impair its rights, remained in the public. City of Logansport v. Shirk, 88 Ind. 563;Shirk v. Board, etc., 5 N. E. Rep. 705, (November term.) We suppose it cannot be doubted that the city might have built a bridge over the canal, provided there was no interference with the company's rights; and, if it could do this, surely it might construct a sewer beneath the channel of the canal. We cannot yield to a doctrine that would lead to a denial of the right of the public to enjoy and use its highways where such use and enjoyment would work no injury to the canal company. While we recognize the doctrine of the decisions following Water-works Co. v. Burkhart, 41 Ind. 364, we do not regard them as going to the extent of holding that the public lost its right to use and enjoy its highways in a lawful manner, although we do regard them as holding that neither the public nor a citizen can do any act that will interfere with the use of the canal property for canal purposes. We should therefore have no hesitation in upholding the reply on the ground assumed by appellees, that the public had not lost its rights if it affirmatively appeared that the highway existed before the canal was constructed; but, as this does not appear, a further discussion is necessary.

It is alleged that a highway called Clinton street crossed the canal, and that it had been in use for more than 20 years. This establishes the important fact that there was a lawfully existing highway, since user for 20 years vests an indefeasible right in the public. Strong v. Makeever, 102 Ind. 578; S. C. 4 N. E. Rep. 11. As the city had exclusive authorityover the highway, it had an undoubted right to use it for any purpose for which a highway might lawfully be used, and it is well settled that the use of highways for sewerage purposes is a lawful one. Cummins v. City, 79 Ind. 491, see page 498; 2 Dill. Mun. Corp. §§ 656-688; Ang. Highways, § 216. The appellant, therefore, had authority to construct this sewer, and it cannot escape liability to one who has suffered an injury from its negligence on the ground that it yielded its rights to the groundless demand of the canal company.

The authority to construct sewers is a general one, and resides in all municipal corporations, unless expressly denied to them by the legislature. Leeds v. City of Richmond, 102 Ind. 372; S. C. 1 N. E. Rep. 711. This authority is one which may be rightfully exercised upon any of the highways of the municipalities, for they are invested with exclusive authority over all streets and highways within their limits. It was therefore within the power of the city of Fort Wayne to have built the sewer in its own way, provided, of course, no injury was done the canal company. The servitude in the streets of a city is much more extensive than in rural highways, and includes the right to dig sewers, lay pipes, and the like. As there was a lawfully existing highway, the city had all the rights which the urban servitude conferred, and among them was the right to construct and maintain the sewer described in the pleadings.

Where a municipal corporation has it in its power, by the exercise of ordinary care and diligence, to secure its rights, and protect property owners from an injury that will probably result from the construction of a sewer, it will be liable if the failure to do its duty results from a wrongful surrender of its authority. City of Logansport v. Dick, 70 Ind. 65.

Another question is discussed by counsel on both sides in their argument on the ruling upon the demurrer to the reply, and, as the question is elsewhere presented in the record rendering a decision necessary, we give it attention here, although what we have said establishes the sufficiency of the reply. The question to which we here refer may be thus stated: Is a municipal corporation which makes use of private property for the purpose of constructing a sewer, and, in order to obtain the privilege of using the property, submits to the demand of the owner to construct the sewer according to plans and specifications prepared by him, liable for negligence in constructing or maintaining the sewer? A very careful study of the authorities has convinced us that the question must receive an affirmative answer. It is the law that if a municipal corporation, by its system of constructing sewers, renders an outlet necessary, it must provide one. City of Evansville v. Decker, 84 Ind. 325;City of Crawfordsville v. Bond, 96 Ind. 236;...

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