City of Valparaiso v. Adams
| Decision Date | 10 April 1890 |
| Docket Number | 14,189 |
| Citation | 24 N.E. 107,123 Ind. 250 |
| Parties | The City of Valparaiso v. Adams |
| Court | Indiana Supreme Court |
From the Porter Circuit Court.
Judgment reversed.
T. J Merrifiled, for appellant.
W Johnston, for appellee.
This was an action by the appellee against the appellant to recover damages growing out of the grading of a street in the city of Valparaiso. The complaint avers that the appellee is, and has been for the last ten years, the owner and in the possession of a certain described lot in the city of Valparaiso, of the value of two thousand dollars, on which there is situate a dwelling-house of the value of fifteen hundred dollars; that said lot is a corner lot, and faces to the south and west, and that the houses thereon are situate on the southwest corner and west and north half thereof; that the appellant has caused the street to be elevated on the west side of said lot to the height of ten feet above the established grade, with reference to which she had built her said house and made her improvements, and that in so elevating and grading said street filled up and removed the gutter and sewer, and so altered the surface of the ground as to cause large and unusual quantities of surface-water, in times of rain, to congregate and gather from a large number of other lots and streets and flow upon the plaintiff's premises and into her house aforesaid, causing it at all times to be filled with water and dirt, and kept damp; that in grading and filling said street the appellant used all kinds of foul and noxious material, such as refuse from privy-vaults and barnyards, which, in time of rain, washed into her house, and thereby caused such a stench in the neighborhood of her house that it rendered her premises uninhabitable; that by reason thereof she has lost the use of her premises for three years, which was of the reasonable value of fifty dollars per month.
The appellant answered by a general denial.
Trial by jury. Verdict and judgment for appellee.
Assignment of errors:
First. That the complaint does not state facts sufficient to constitute a cause of action.
Second. That the court erred in overruling the appellant's motion for a new trial.
In the absence of some statute upon the subject, a city is not liable to an individual citizen for damages caused by the grading of a street, nor for damages caused by changing the grade of a street when once established. There is, however, one exception to this general rule. Where the city, in grading streets and making public improvements, fails to exercise proper care and skill in the selection of a plan, and by reason thereof an injury to the owner of private property occurs, which, by the exercise of reasonable skill and care, could have been avoided, the city is liable for such injury. City of Indianapolis v. Huffer, 30 Ind. 235; City of Delphi v. Evans, 36 Ind. 90; City of Terre Haute v. Turner, 36 Ind. 522; City of Seymour v. Cummins, 119 Ind. 148, 21 N.E. 549.
We have had some trouble in settling upon the theory upon which the appellee bases her claim in this action, but it is certain that it can not be based upon the theory that it falls within the rule announced in the cases above cited, for there is a total absence of any allegation in the complaint...
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