City of Vicksburg v. Porterfield

• Decision Date: 16 January 1933
• Docket Number: 30317
• Citation: 145 So. 355,164 Miss. 581
• Court: Mississippi Supreme Court
• Parties: CITY OF VICKSBURG v. PORTERFIELD

145 So. 355

164 Miss. 581

CITY OF VICKSBURG v. PORTERFIELD

No. 30317

Supreme Court of Mississippi

January 16, 1933

Division B

1. MUNICIPAL CORPORATIONS.

In action against city permitting drain sewer to become obstructed and rainfall to be impounded, resulting in damage to property, evidence sustained jury's finding for plaintiff.

2. MUNICIPAL CORPORATIONS.

City using street as public street was under duty to property owner to keep drain under fill in proper condition, whether city constructed fill and drain or not.

3. MUNICIPAL CORPORATIONS.

City constructing drain was bound to provide for rainfall which experience showed would probably fall, although past rainfalls had been excessive.

4. MUNICIPAL CORPORATIONS.

Instruction city was not liable for insufficiency of drain to carry surplus water from extraordinary rains held properly refused under evidence showing drain was obstructed.

5. MUNICIPAL CORPORATIONS.

City must exercise reasonable care to maintain efficiency of drains.

HON. E L. BRIEN, Judge.

APPEAL from circuit court of Warren county, HON. E. L. BRIEN, Judge.

Action by Mrs. Willis C. Porterfield against the City of Vicksburg. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

R. M Kelly, of Vicksburg, for appellant.

"That when the City of Vicksburg built said embankment and the drain thereunder the law imposed upon it the duty to keep said drain pipe open, free from obstruction so as to take care of all the water falling on plaintiff's property on the west side of south Walnut Street and all of the water which flowed to plaintiff's said property from the surrounding lots, along with whatever might be brought with the water, such as soil, the said opening."

The above instruction was given by the court, although the testimony of all of the officers testifying for defendant testified that when it was proposed to remove the obstruction, or obstructions, and attempt to remedy the condition, appellee objected.

A city has the right to change its street grade, and to alter original plans and specifications for that purpose, and in so doing there is no negligence per se; and hence a city is not liable for interference with drainage of surface waters thereby, unless negligence in fact is shown.

Chidsey v. City of Pascagoula, 59 So. 879, 102 Miss. 709.

A municipality will be held liable if it collects surface or other water in sewers or drains, and deposits it, either immediately or by the force of gravity, on to the land of an individual. And it is equally chargeable with wrong if a street railway which it has authorized to be built in a street has the effect of diverting surface water onto private property to its injury. However, there is no liability if the collection of the water on the property in question is due wholly or in part to the fact that the property is on a lower level than the street. Municipal corporation are generally held not bound to provide drains or sewers to carry off surface waters. But that they have power to do so is beyond question.

4 McQuillin Municipal Corporation, sec. 1599; 329 Am. Rep. 135; 9 Am. Rep. 473; 112 Pa. 529; 71 S.W. 867.

In view of the testimony offered in behalf of appellees, as to damages created by reason of the excessive rain of February 17, 1927, a rain unprecedented as far as the records of the weather bureau office in the City of Vicksburg show, we respectfully submit that the court erred in refusing defendant the following instruction:

The court instructs the jury that the city is not liable for insufficiency of its sewers to carry off surplus water from an extraordinary rain or storm. Especially is this true where such drains or sewers are sufficient to meet all demands upon them under ordinary conditions, and therefore if the jury believe from the evidence in this case that the sewer or drain to plaintiff's property was sufficient to carry off the waters from ordinary rains, but was not sufficient to carry off the waters from extraordinary rains, then, even though the jury should believe that plaintiff's property was damaged by reason of being overflowed from waters from extraordinary rains, still the jury must find for the defendant.

The evidence not only does not sustain plaintiff's demand for damages, but it clearly shows that she is not entitled to any. The precise condition of things existing when she brought this suit existed at the date of her acquisition of the property, and had therefore existed for many years. It is perfectly clear to our minds that the plaintiff's pretentions are groundless.

Davis v. City of New Orleans, 6 So. 100.

In such cases the universal understanding and practice is, that owners of lots may fill them up or change their natural surface to suit their own tastes or convenience, and so as to obstruct or repel the surface water coming from the lots of others, without liability for injury; and that the public authorities have the same rights and privileges with respect to streets, squares and other public grounds.

It has been held on general principles that a municipal corporation is not liable to a private action for damages accruing from such a cause.

Hoyt v. The City of Hudson, 9 Am. Rep. 473.

A municipal corporation is entitled to exercise dominion over the public highways, and is not liable for so exercising this right as to change or divert the flow of surface water. The obstruction of surface water or an alteration in the flow of it affords no cause of action in behalf of a person who may suffer loss or detriment therefrom against one who does no act inconsistent with the due exercise of dominion over his own soil. A municipal corporation had the same rights to divert or obstruct the flow of surface water as a natural person, and for an obstruction or diversion caused by the grading and improvement of streets there is no liability unless negligence is shown.

Weiss v. City of Madison, 39 Am. Rep. 135.

All witnesses agreed--the beginning and the end--intake and outlet of the pipe was on the property of this appellee. The defendant city had no earthly authority, without the consent of appellee to open or close this drain--it was entirely in possession of, and, under control of appellee.

Whether the appellee had constructed its culverts with sufficient capacity to carry off the water, under all the circumstances affecting the solution of that question, and whether the rainfall was unprecedented, were questions of fact, which should have been submitted to the jury--the triers of fact.

Patterson v. Illinois Central R. R. Co., 29 So. 93.

A city is not bound to furnish drains or sewers to relieve a lot of its surface water, whether its own or that flowing from other premises.

Jordan v. City of Bentwood, 36 L.R.A. 519.

It is clear that there is no liability on the part of a municipal corporation for not exercising the discretionary or legislative powers it may possess to improve streets, and, as part of such improvement, to construct gutters or provide other means of draining for surface-waters, so as to prevent them from flowing upon the adjoining lots. And even when the work of grading the streets has been entered upon, there is not ordinarily, if ever, any liability to the adjoining owner arising merely from the non-action of the corporation in not providing means for keeping surface-waters from property situate below the established grade of the street. There are, indeed, cases which go further, and assert that there is no such liability where, in making improvements upon streets or elsewhere, authorized by law, surface waters are purposely turned from one's own land to that of another--from the street directly upon the adjacent property owner.

4 Dillon, Municipal Corporations, section 1743.

The questions as to whether the rainstorm was an unprecedented one, and whether defendant's culverts were sufficient, were for the jury.

Patterson v. Illinois Central R. R. Co., 29 So. 93.

Thames & Thames, and Brunini & Hirsch, all of Vicksburg, for appellee.

A city cannot impound surface water, or any other water, on the lot of an abutting owner on one of its streets and escape liability for the damage thereto.

Interfering with the long-established watercourses by raising the grade of streets so as to throw water back on abutting lots, has been held sufficient to render the municipality liable for damages in states having constitutional provisions similar to ours.

City of Vicksburg v. Foley, 59 So. 829; City of Jackson v. Williams, 92 Miss. 301.

Section 17 of the Constitution is applicable.

Tishomingo County v. McConville, 139 Miss. 589.

The following cases in other states having constitutional provisions similar to Mississippi hold likewise.

Arndt v. Kullman, 132 Ala. 540, 31 So. 478; Morley v. Buchanan, 124 Mich. 128; Rice v. Flint, 67 Mich. 401; Avondale v. McFarland, 101 Ala. 381, 13 So. 504.

Even though damage to one's property is caused by excessive rainfall, nevertheless, there must be a recovery unless the jury believes that the rainfall was so unprecedented as not to have been reasonably expected or foreseen by a man exercising ordinary prudence and foresight.

Arndt v. Kullman, 132 Ala. 540, 31 So. 478.

Argued orally by R. M. Kelly, for appe...