City of Maysville v. Brooks

• Decision Date: 24 November 1911
• Citation: 140 S.W. 665,145 Ky. 526
• Parties: CITY OF MAYSVILLE v. BROOKS.
• Court: Kentucky Court of Appeals

140 S.W. 665

145 Ky. 526

CITY OF MAYSVILLE v. BROOKS.

Court of Appeals of Kentucky.

November 24, 1911

Appeal from Circuit Court, Mason County.

Action by Frances D. Brooks against the City of Maysville. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

J. M Collins and Greene & Van Winkle, for appellant.

A. D Cole and L. C. Reynolds, for appellee.

MILLER J.

The city of Maysville is surrounded on the south by high and precipitous hills, which gradually rise from the Ohio river to a height of several hundred feet. The top is known as "Anderson's Hill," which is a mile or more south of the city limits. From this point the natural watershed from the hills drains into a deep ravine, which runs northwardly between the hills and along the line of the Lexington turnpike until it intersects with the southern limits of the city near the line of West Fourth street. The ravine then crosses in a northeasterly direction, through the lots of the various property holders, passing through the block bounded by Third and Fourth streets and Sutton street and the Lexington turnpike. Continuing, it crosses Third street about midway between Sutton and Wall streets, and thence proceeds diagonally and northwardly to the river. This ravine is made by the natural formation of the surrounding land, and was washed out and cut through by the surface waters from rainfalls and melting snows, which have been following this course ever since and before the town was located. The surface water from this watershed south of the city passes or flows through this channel to the river. In many places this water course or channel, as it is called has been walled up and arched over by the different property owners through whose ground it passed, forming what is now called a "sewer," which begins at the junction of the Lexington turnpike with Fourth street. This work of walling and arching the channel was done exclusively by the property holders many years ago, and at different times. For quite a while a large part of the channel was only confined by side walls and embankments, leaving the top open and exposed to view. In course of time the work has been completed by the several property holders so as to form a complete and closed sewer from the junction of the Lexington turnpike with Fourth street to the river. Appellee's lot fronts on Third street and extends back to Phister avenue. It has a brick dwelling house fronting upon Third street, with outhouses upon the rear end of the lot. The Chunn property lies immediately east of appellee's property, while the county lot upon which the Mason county jail is situated lies immediately east of the Chunn lot. The sewer runs diagonally across the rear end of appellee's lot and thence across the Chunn lot and into the county jail yard, where it turns northwardly and crosses Third street in its course to the river. The sewer having been constructed by different persons and according to their respective notions as to its necessary capacity, some parts of it are larger than other parts. That part of the sewer upon the Chunn lot, which is immediately east of and below appellee's lot, is eight inches smaller than the portion of the sewer through appellee's lot. The ground occupied by the appellee's property, the Chunn, and the county jail lots was originally flat, or a swamp, which has been merely filled up, more or less, by soil washed from the hills. The city has constructed streets across the sewer wherever it was necessary to accommodate the traveling public. In 1882 Mason county bought what is now the county jail lot and erected a jail thereon, and in doing so it reconstructed the channel through its lot. Subsequent to this, Chunn improved his lot by building a warehouse immediately over the drain. The appellee also has utilized the channel or sewer by building an outhouse over it, upon the rear end of her lot, with the necessary openings from the outhouse into the channel. On April 1, 1908, Maysville and vicinity were visited by what the appellant's witnesses call a cloud-burst, which sent so great a volume of water through the sewer as to burst it where it crosses appellee's lot and flood her house with water, mud, and débris, to a depth of some three or four feet. She escaped to the second story, and for some time was unable to use the lower story of her house. Her furniture, carpets, and other personal effects in the lower story were badly damaged, and there is some evidence that the foundations of her brick dwelling were weakened. The outhouse was thrown down, and the yard filled with débris from the sewer. Subsequently, on August 14, 1909, a similar, but less severe, rain again flooded appellee's house, causing considerable damage to her furniture and effects in the lower story, but not to so great an extent as that caused by the overflow of the preceding year.

To recover damages for these injuries the appellee brought this suit against the city of Maysville, charging that it had negligently and carelessly constructed and maintained the sewer; that it had diverted into the sewer surface water which otherwise would not have gone there; and that it had permitted the drain or sewer to become obstructed, thereby causing the water to overflow and damage appellee's property. After denying all negligence upon its part, the city set up the four following defenses: (1) That the drain or channel was a natural water course following the natural depression of the land, and that it had been walled up and made into a sewer by the property owners, of irregular size, as above pointed out, and over which appellant had no control, and for which defects it was not responsible. (2) That appellant never, at any time, adopted or accepted said drain or channel as a public sewer, or authorized the plaintiff or her predecessors in ownership to wall up or arch over the channel, or to in any way interfere with the natural water course which theretofore existed. (3) That appellant was a city of the fourth class, and, as such, was a mere arm of the government, and vested with its own discretion as to whether it would construct and maintain public sewers, but that it was not bound to do so; and that it had never exercised its discretion in that respect with regard to the construction or maintenance of the sewer in question, and had no rights or jurisdiction over it so far as it runs across the property of the appellee and other property owners. (4) That the rains complained of were unprecedented and unusual in size and volume, and for damages incurred thereby the appellant was not, in law, responsible. Appellee obtained a verdict and judgment for $2,000, and the city appeals.

Although the petition alleges that appellant constructed and maintained the sewer or drain, and that it negligently used it so as to flood appellee's property, the case has been tried upon the theory that appellant's responsibility arises from the fact, claimed by appellee to be true, that, although the city had not constructed the sewer, it had taken possession of and used it for municipal purposes, had thereby converted a natural water course into a public sewer, and that its duty to its inhabitants was the same as if the sewer had been originally constructed by appellant.

The legal obligation of a municipal corporation to construct sewers is one to be voluntarily assumed, and, if it does not undertake to create a system of sewers, the city is not responsible for damages caused by freshets; but, if a municipality assumes the obligation of constructing a sewer, it must keep the same in good order and repair, and is liable in damages for failure so to do. But a municipal corporation does not assume responsibility for a private sewer, although it may, by appropriate action, accept a private sewer and thus make it a part of its public system of sewers; and, in such a case, it is as much liable for damage as it would be if it had originally constructed the sewer. Gedge v. Commonwealth, 9 Bush, 61; L. & N. R. R. Co. v. Survant, 96 Ky. 205, 27 S.W. 999, 16 Ky. Law Rep. 545; 13 Cyc. 466.

The court properly instructed the jury that if the city had adopted the channel as a part of its system of sewers, and the damage had been occasioned by an unusually heavy rain, it should find for the city; but, if the city, after having adopted the channel as a part of its system of sewers, had negligently failed to keep the same in proper repair, then the city was liable. There is no complaint made to the instruction on the measure of damages. At the close of the evidence appellant made a motion for a peremptory instruction, upon the ground that there was no competent evidence tending to show that the city had ever accepted or adopted the channel as a part of its system of sewers; but the court overruled the motion. It is manifest therefore that, if there was evidence of an acceptance or adoption sufficient to carry the case to the jury, the verdict and judgment must be sustained. On the other hand, if there was no competent evidence showing an acceptance or an adoption of the channel as a part of its system of sewers...