City of Valparaiso v. Spaeth
| Decision Date | 12 December 1905 |
| Docket Number | 20,534 |
| Citation | 76 N.E. 514,166 Ind. 14 |
| Parties | City of Valparaiso v. Spaeth |
| Court | Indiana Supreme Court |
Mandate Modified January 24, 1906.
From Porter Superior Court; A. C. Capron, Special Judge.
Action by Wilhelmina Spaeth against the City of Valparaiso. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p 590.
Reversed.
H. H Loring, for appellant.
T. H. Heard and William S. Hamilton, for appellee.
Action for damages for negligently causing the overflow of the plaintiff's lot.
Proceeding under the act of 1899 (Acts 1899, p. 164, now repealed, the provisions here involved being in substance reenacted in Acts 1901, p. 449, §§ 1, 2, §§ 6899, 6900 Burns 1901) fifty freehold voters of Center township, Porter county, in which township the city of Valparaiso, of 6,000 inhabitants, is located, on April 24, 1899, filed with the board of county commissioners their petition for the improvement, by grading and graveling, of a certain highway in said township which extended into the corporate limits of said city, and which extension within the city was over Campbell street, a north and south unimproved street, to Haas street, a distance of more than eighty rods. Whereupon the commissioners appointed a surveyor and reviewers, who proceeded under the law to view, survey, establish grade, and make a profile of details, determine the quality and depth of gravel, and cost of improvement, and on May 16, 1899, filed with the commissioners their report, as required by the statute. For the grade of the street the surveyor and viewers adopted the grade established by the city council in December, 1895, by ordinance. The common council of appellant city having given its consent to said improvement and ordered it to be made, as provided by section two of said act of 1899, the county commissioners ordered an election, which resulted in a majority vote of the township, including the city, being cast in favor of the proposed improvement, as exhibited by the plans and profile made by the surveyor and viewers. A contract was let by the commissioners, and the improvement was completed and accepted in July, 1901. Eighty rods south of the Grand Trunk railroad, Campbell street is intersected by Pearl street, running east and west. The west end of the plaintiff's lot abuts on Campbell street, and the north side thereof on Pearl street. Between the Grand Trunk railroad and Pearl street, and east of Campbell street the general slope and drainage of eight or more acres is to the southwest, with frequent slight elevations and depressions in the surface. Campbell street at the crossing of the Grand Trunk railroad is about twenty-five feet higher than at the west line of plaintiff's property. Before the improvement of Campbell street the storm water falling on said eight or more acres, flowing south and westwardly, found its way along the depressions, and between the plaintiff's lot at Pearl street and the Grand Trunk railroad, crossed Campbell street through two culverts, one of which some of the witnesses called a bridge. In the execution of the improvement, the culverts mentioned were removed from Campbell street, the watercourses filled up to grade, and side ditches so made as to collect and carry in the east side ditch, down to the neighborhood of the plaintiff's property, all the surface-water theretofore distributed and discharged to the westward of Campbell street through said culverts. Near the southwest corner of the plaintiff's lot is the lowest point for several hundred feet, to the south, east and north, so that surface-water flows to this point from the south near Haas street, from the east along Pearl street to Academy street, and from the north on Campbell street. The east sidewalk of Campbell street, as improved, is twenty-four inches higher at the northwest corner and thirty inches higher at the southwest corner, than the plaintiff's lot, the side ditch twelve inches lower than the sidewalk, and the crown of the roadway seven inches higher than the sidewalk. Pearl street, so improved, is also several inches higher than the plaintiff's lot. In the improvement of Campbell street no provision whatever was made by any one, nor has any since been made, for the escape of the storm water collected and carried to the plaintiff's property by the improvement, which there accumulated in a large body, flowed in and upon the plaintiff's lot, flooded the premises, filled her cisterns and cellar with foul water and filth carried from the streets, washed and destroyed the foundation of her dwelling-house, thereby rendering it uninhabitable, to her great damage, etc.
The complaint, alleging, in substance, the foregoing facts, is in two paragraphs. The first counts upon the negligence of appellant in failing to provide a means of escape for the large body of surface-water collected and cast upon the plaintiff's premises by the improvement of Campbell street. The second, upon negligence in maintaining a system of drainage from Campbell and Pearl streets whereby no way of escape was provided for the large body of storm water that was collected, carried and discharged upon the plaintiff's premises. The case went to trial on the general denial and the six-year statute of limitation. There was a trial by jury, and verdict and judgment for appellee.
There are divers assignments arising upon the pleadings and motion for a new trial, but appellant's counsel advises us that "the law governing municipalities in dealing with surface-water in the grading of its streets is the question to be decided in this case."
Preliminarily to the principal question appellant's attorney argues that, as the proceedings were begun before and accomplished by the agents of the county commissioners, under authority conferred by the legislature, and that without any agency, oversight, or active participation of the city, the latter is not liable for a negligent performance of the work, or for the maintenance of a system of drainage established by the county under legal authority.
(1) In this contention appellant cannot be sustained. In the passage of the act of 1899, supra, the lawmakers were very considerate of the rights of municipalities. Under its provisions, the authority of the county commissioners to improve a street in a city, as a part of a country road, is rooted in the consent of the common council and expressed approval of a majority of the voters of the city and township. Under the act, beyond making the survey, adopting a grade, a general plan, and making a profile thereof, the commissioners have no power to enter the city limits for any purpose of improvement until after they have obtained the fullest consent of the city council to the proposed improvement, expressed in the most unequivocal manner. The following is the language of the law: "Where any road or roads to be improved are in the corporate limits of * * * any city, * * * the board of county commissioners must before publishing the report of the engineer and viewers, obtain of the common council of said city * * * their consent to said improvement in said town, and said consent shall be shown by a copy of the record of the meeting of said trustees, either in regular or special session ordering that said improvement be made." Acts 1899, p. 164, § 2. The provision amounts to this: that when commissioners have exhibited to the common council the precise plans and specifications of a proposed improvement, if the council withholds its approval, that is the end of the matter. The commissioners have no power to proceed further. But if the city is satisfied with the plan, and desires the improvement made as proposed, it seems not sufficient for the council passively to consent, but it must act affirmatively and officially in legal session, and enter upon its minutes an order that the improvement be made. Such an order, made upon full knowledge of the plans and specifications proposed, is equivalent to making the improvement the city's own, and if the work under such an order is executed according to the exhibited plans and...
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