City of St. Louis v. Gurno

• Decision Date: 31 March 1849
• Citation: 12 Mo. 414
• Parties: CITY OF ST. LOUIS v. PETER GURNO.
• Court: Missouri Supreme Court

12 Mo. 414

CITY OF ST. LOUIS

v.PETER GURNO.

Supreme Court of Missouri.

March Term, 1849.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS

This was an action on the case brought by the plaintiff against the defendant to recover damages which plaintiff claims he sustained by reason of certain improvements made by the defendant in the grading, paving, &c., of certain public streets in the city of St. Louis, and which improvements caused the overflow of plaintiff's premises in times of heavy rains, and no adequate means of carrying off said water were provided by the city. Damages were laid at $2,000. To this action the defendant pleaded the statutory plea of the general issue.

On the trial, it appeared on the part of the plaintiff that he owned the property in question before the improvements were made by the city. That there was a natural gully through which the water escaped that collected on Seventh and Wash streets. That in 1843 the city caused Seventh and Wash streets and other streets adjacent thereto to be graded and paved, and in order to carry off the water, they cut a ditch or sewer from the corner of Seventh and Wash to an alley between Seventh and Eighth streets. That the water increased after the making the improvements, and the sewer made by the city was insufficient to carry off all the water. That the owners of property in that vicinity, including the plaintiff, were desirous to have the streets improved, and took steps to have it done, and the whole difficulty arose from the insufficiency of the sewer. That the requisite sewer and such an one as would save the property in that section of the city would cost $30,000 or $40,000. Testimony was also given to prove the damage sustained by the plaintiff, but which it is not deemed material here to notice.

On the part of the defendant it appeared by the testimony of Henry Keyser, who was city engineer when the improvements were made, that from St. Charles street northwardly to Wash street, lies in the lowest part of the valley that lies between two elevations on the east and west; that the water from these regions runs down on to Seventh street northwardly as far as Wash street, and there turns westwardly in a gully which communicated to sink holes into which the water escapes. That when Seventh was paved, the gully was closed up at its intersection with Seventh street, and the water was directed to run northwardly on Wash to its intersection to an alley between Seventh and Eighth streets, and thence carried up on that alley until it met again the old gully. When Seventh street was paved the water had washed out gullies wide and large from Morgan street north to Wash street, and that before said improvements were made most of the cellars along Seventh street, on both sides northwardly from St. Charles to Wash streets were filled with water after heavy rains. That from the elevation of the intersection of Seventh and Wash streets, there is a certain descent to these said holes, and that in conducting the water through the alley, in digging the ditch particular care was taken to divide that descent equally the whole length the water had to run to the sink holes, and in establishing the grade in that neighborhood, particular care was taken that not more water be drawn into Seventh street than would naturally flow there. That the course of the water was diverted because of the improvement on Seventh street, and that the gully went through private property. That the course of the gully, before the improvements, ran from a point about 15 feet north of the intersection of Wash street-westwardly to the middle of the block where it now intersects the ditch cut by the city. That these overflows result from the large area that is drained into Seventh by the ridges and the natural increase of water by the improvements. That plaintiff, at the time of the construction of the ditch, informed witness it would ruin his property. That the water has been increased by the improvements of the streets.

On the trial it was agreed that all the streets alluded to are public streets. That the grading and paving of the streets, and the construction and obstruction of the culvert or sewer near the corner of Wash and Seventh streets, and the change in the original course of the gully or ravine, was by the city of St. Louis and authorized by it. The foregoing was all the proof in the case.

At the request of the plaintiff the court gave the following instructions to the jury: 1. “If the jury believed from the evidence that the plaintiff was the owner of the premises in the declaration mentioned, and that the city of St. Louis, the defendant, in the improvements they made upon the streets and alleys leading to and by the premises of the plaintiff, caused mud, water and filth to flow by and along the premises of the plaintiff, and that the works so constructed to carry off said water, filth and mud, was not of sufficient capacity and size to carry off the said water, mud and filth aforesaid, and that the same was thrown upon the premises of the plaintiff, and overflowed his cellar and buildings, and that the plaintiff sustained damages to his house and lot, they will find the defendant guilty, and assess such damages as the said plaintiff has proved he has sustained.” 2. “It was the duty of the city in making the improvements above referred to, to make improvements, construct such culverts or sewers as would be sufficient to carry off the water carried or flowing that way, so as not to damage or injure private property.” To the giving these instructions, the defendant at the time excepted.

Defendant asked the following instruction: “If the jury believe from the evidence that the improvements made by the city at and adjacant to the property of the plaintiff, were made in a skillful and proper manner by the officers of the city, they will find for the defendant, though the jury should believe that said improvements caused the injury complained of by the plaintiffs” which instruction the court refused to give, and the defendant then and there excepted to such refusal. And thereupon the jury found the defendant guilty, and assessed the damages at $1,675 00. The defendant then filed a motion to set aside the verdict and for a new trial, for the following reasons: 1st. Because the verdict is against law, against the evidence, and against law and evidence. 2nd. The court erred in refusing instructions asked by the defendant, and in giving instructions asked for by the plaintiff. 3rd. The court erred in excluding evidence offered by the defendant. 4th. The damages are excessive. Which said motion was heard by the court, and the plaintiff having entered a remittitur of $675, the motion to set aside said verdict and for a new trial was overruled, to which defendant excepted and took an appeal.

BLENNERHASSETT, for Appellant.

1st. A municipal corporation is not liable for injuries to third persons resulting from public improvements. Wilson v. City of New York, 1 Denio R. 595; 4 Sergeant & Watts, 514; 9 Watts, 382. 2nd. The court below assumes in the first instruction given for the appellee, and in that refused to be given for the appellant, that a corporation is liable in all cases where improvements made produce or cause injury and damage whether the corporation and its officers and agents were guilty of neglect and unskillfulness or not. Such a doctrine cannot be sustained by any principle of law or reason, and is against public policy. 3rd. A corporation can only be liable in damages where she constructs public works or makes public improvements on her own property, and for her own benefit, and injuries are sustained thereby by third parties, and all the authorities sustaining a recovery under such circumstances are based on principles arising from this fact. 2 Denio, 434. 4th. And where damages are sustained by the neglect or unskillfulness, &c., of such agents or officers, they are not civilly liable, but can only be proceeded against by impeachment or indictment. 1 Denio, 595. 5th. The charter of St. Louis of 1839, and the amendments thereto of 1841, do not make it compulsory on the city to make improvements, or construct works therefor, it merely empowers her to do so. The 8th clause of the 1st section of the 3rd article of the charter of 1839, confers this power. and it is as follows: “Sec. 1. The city council shall have powers within the city by ordinance,” 8th clause, “to open, alter, abolish, widen, extend, establish, grade, pave, or otherwise improve and keep in repair, streets, avenues, lanes and alleys.” This power being discretionary, to be exerted or withheld, according as the council may deem it necessary or proper. It is in its nature judicial, and the officer is exempt from all responsibility by action for the motives which influence him, and the manner in which such duties are performed. It is otherwise where the duty is absolute, certain and imperative. Then he acts ministerially, and he is responsible for his delinquency, and is bound to make redress to every person who suffers by his misconduct. 6th. The plaintiff and appellee complains that the city did not make such a culvert or sewer as would be sufficient to carry off the water, mud, &c., that accumulated at or near plaintiff's premises, and the court instructed the jury that the city should have done so, and an omission to do this made the city liable. The reasons and principles advanced in the 5th point will apply here, and the grounds assumed come within the principles settled in the case of Wilson v. The City of New York, 1 Denio, 595.

FIELD & HALL, for Appellee.

1st. The city of St. Louis, as a corporation, was liable to the appellee for the construction of an insufficient sewer or culvert on Wash street, whereby the water flowing along and by the premises of appellee was dammed up, thereby overflowing the cellar of said appellee, and causing great injury and damage to his house. 2nd. The fact that the city of St....