City of Tucson v. O'rielly Motor Co

• Citation: 168 P.2d 245,64 Ariz. 240
• Decision Date: 22 April 1946
• Docket Number: 4775
• Parties: CITY OF TUCSON v. O'RIELLY MOTOR CO
• Court: Supreme Court of Arizona

168 P.2d 245

64 Ariz. 240

CITY OF TUCSON v. O'RIELLY MOTOR CO

No. 4775

Supreme Court of Arizona

April 22, 1946

Appeal from Superior Court, Pima County; Henry C. Kelly, Judge.

Affirmed.

Thomas J. Elliott, City Atty., of Tucson, for appellant.

Darnell & Robertson and Bilby & Shoenhair, all of Tucson, for appellee.

Stanford Chief Justice. La Prade and Morgan, JJ., concurring.

OPINION

Stanford Chief Justice.

We will style the parties as they appeared in the superior court.

Judgment was given in the trial court by direction to jury of verdict for plaintiff for damages caused by negligence of defendant in permitting the property of plaintiff to be flooded as hereinafter set forth. After plaintiff's case was finished defendant rested without offering testimony. A motion by plaintiff for a directed verdict was granted; judgment was entered and it was from said judgment and the court's denial of defendant's motion for a new trial that this appeal is brought to this court.

Through the City of Tucson, Arizona, there ran an arroyo, the course being southeast to the northwest. Rains falling east and southeast of the city and rains falling within the city drained into this arroyo and flowed to the Santa Cruz River bed to the west of the city.

In February, 1925, the City of Tucson commenced work for the enclosure and covering of said arroyo, changing the course of the arroyo only in certain instances. That work was completed December 25th, and in August, 1930, the city extended the work to the easterly part of the City of Tucson, the same being completed in February, 1931. Thereafter the city used, operated, controlled and maintained the said tunnel or culvert. The box, tunnel or culvert enclosing the arroyo made existing bridges over the same a part of the enclosure, but as we understand the testimony, the inside measurement of the construction was 10 x 10 feet and there were two of such tunnels side by side.

The arroyo originally was in size from 75 to 100 feet in width at the top and from 10 X 10 feet in width at the bottom.

The property line of the plaintiff was approximately 66 feet north of the bank of the original arroyo.

Owners of property had their properties flooded by rains that fell in 1933, 1935, 1937, 1939, 1940 and 1943. The rain of 1940 was so severe complaint was made and in many instances settlement made by the city with property owners. Numerous complaints were made to the city concerning the condition of the arroyo as constructed.

In addition to reducing the size of the arroyo, the complaint of the plaintiff was that the natural course of the arroyo was changed in instances by the City of Tucson; that it was narrowed and that sufficient openings from gutters, ditches and places where water naturally drained into the arroyo, were not provided by the city; that within the culvert or arroyos so enclosed there were various obstructions that retarded the flow of floods such as pipes and sewer lines. That on the 24th day of September, 1943, heavy rains fell in the City of Tucson and vicinity and in the vicinity draining into said culvert and because of the narrowed condition of the culvert or enclosed arroyo, the waters within said tunnels got out of bounds and flooded the premises of the plaintiff.

The facts of the case show that for some four days the plaintiff was without the use of his premises by reason of flood waters and the damage caused thereby; that the plaintiff was in the business of conducting a retail automobile sales agency and repair shop on the premises in question and that the same were damaged by reason of said flood.

The three propositions of law presented by defendant sufficiently set forth the matters presented in its ten assignments of error.

Proposition of Law No. 1. Where the evidence shows that the plaintiff's damages may have resulted from one of several causes but only one of the causes may be attributed to the defendant's negligence, the plaintiff must be denied recovery.

Proposition of Law No. 2. In all cases both at law and in equity either party shall have the right to submit all issues of fact to a jury.

Proposition of Law No. 3. Where affidavits in support of motion for postponement of trial discloses sufficient cause therefor, it is an abuse of discretion of the court to deny such postponement.

Supporting its first proposition defendant cites, among other cases, the cases of Owl Drug Co. v. Crandall, 52 Ariz. 322, 80 P.2d 952, 120 A.L.R. 1521; Esson v. Wattier, 25 Or. 7, 34 P. 756; Ramberg v. Morgan, 209 Iowa 474, 218 N.W. 492, 493; Treichel v. Great Northern Ry. Co., 80 Minn. 96, 82 N.W. 1110. And quotes from the case of Salt River Valley Water Users' Ass'n v. Blake, 53 Ariz. 498, 90 P.2d 1004, 1006. The facts in the case of Salt River Valley Water Users' Ass'n v. Blake, supra, are: Plaintiff had 40 acres of land planted to a crop of lettuce. During the night time the land was flooded to the extent that the water came into the house a foot or two deep and damage was alleged. The Salt River Valley Water Users' Ass'n maintained a lateral, or ditch, which carried the water in front of the house and property of Blake. The damage was caused at 3:30 a. m. by limbs from trees and from other things collecting in a culvert that recently had been reconstructed but prior thereto the zanjero had investigated and seen that the culvert was clear. The jury gave damages. This court reversed the case. Among other things this court said:

"We have held several times that the defendant is not an insurer against damage from its irrigation system, but is only required to exercise reasonable care to see that the system is properly constructed, maintained and operated. (Citing cases.) What then does reasonable care require in regard to seeing that its irrigation ditches are kept free from the debris which must be expected to fall therein in the usual course of events? We think this duty is to refrain from itself causing any debris to fall into the ditches and to remain there; to inspect them at reasonable intervals to see that none has gotten therein through fortuitous causes, and if it has notice, either actual or constructive, that an undue amount has accumulated, to remove it promptly.

"* * * There is no evidence that defendant had any actual knowledge that there was anything in the ditch which would cause the culvert to become stopped up, * * *." In the instant case applying it so far as we can to the facts here, there is evidence that the defendant had actual notice over a period of years that the culvert, arroyo or tunnel did not carry the flood waters that would often come down its path.

Defendant refers to the case of Sieler v. Whiting, 52 Ariz. 542, 84 P.2d 452, 454. This is a case of an automobile accident where it is alleged that certain acts were negligent. The gist as intended to be conveyed by defendant is: "It is, of course, incumbent upon a plaintiff alleging negligence on the part of a defendant to show affirmatively by evidence sufficient to satisfy a reasonable man that the negligence complained of actually existed. It is not sufficient that the facts are such that it might have existed. It must appear affirmatively that it did. * * *" Defendants cite McQuillin Municipal Corporations, 2d Ed., Vol. 6, Sec. 2875, from which we quote:

"Watercourses, liability in regard to. Where a watercourse passes through the boundaries of a municipality, there is no duty on its part to keep the stream in a safe condition or free from obstructions; and this is so although the stream has been declared a public highway by statute. * * *

"There is no liability for consequential damages resulting from improvements made in watercourses, where authorized and where there is no negligence, the same rule applying as in case of other public improvements, although there is liability where a public improvement obstructs a watercourse. A municipality is not liable for damage to private premises due to the overflow of a natural stream because it constructed artificial conduits and hard surfaced streets causing the surface waters, which would otherwise flow into the stream directly and a portion thereof seep into the ground, to pass through such conduits into the stream."

We think the rule stated in McQuillin, Municipal Corporations, 2d Ed., Vol. 6, Sec. 2877, is applicable in this case:

" Where a municipal corporation constructs a culvert for the passage of the waters of a watercourse or natural drain, it will be liable for damage caused by the escape of water therefrom to adjacent lands due to a negligent construction of the culvert, or its inadequacy (according to the rule in many states) to carry away water ordinarily coming into it, or for failure of the municipality to remove obstructions therein; and a culvert obstructing a watercourse, to the injury of riparian owners, is a nuisance, and damages are recoverable.

"The culvert must be sufficient to accommodate, not only the natural and normal flow of the stream, for example where the culvert is constructed over a natural water course, but such abnormal and excessive flow as may reasonably be anticipated in time of high water and flood. However, 'there is no duty to provide for floods so unusual and extraordinary as to bring them within the category of an 'act of God.' * * *"

In our case of City of Globe v. Shute, 22 Ariz. 280, 196 P 1024, 1026, we stated the facts to be that the action was brought to recover for damages to certain goods kept in a store situated on the southerly side of Oak Street in a certain block in the City of Globe, occasioned by the flooding of the store during a heavy rain storm and it was claimed that the flood was caused by the insufficient drain constructed by the city. In that...