Dunn v. Boise City

• Decision Date: 26 December 1929
• Docket Number: 5283
• Citation: 283 P. 606,48 Idaho 550
• Parties: ROBERT DUNN, Respondent, v. BOISE CITY, a Municipal Corporation, Appellant
• Court: Idaho Supreme Court

283 P. 606

48 Idaho 550

ROBERT DUNN, Respondent, v. BOISE CITY, a Municipal Corporation, Appellant

No. 5283

Supreme Court of Idaho

December 26, 1929

MUNICIPAL CORPORATIONS - LIABILITY FOR DEFECTIVE ARTIFICIAL WATERWAY-FILING OF CLAIM AGAINST CITY-REOPENING OF CASE FOR FURTHER EVIDENCE-ASSIGNMENT OF CAUSE OF ACTION-CONSIDERATION.

1. City was not insurer of condition of drainage system which utilized channel of creek altering it to carry off water from two gulches instead of one and a narrowing channel, but was bound to use ordinary care and skill in constructing and maintaining drainage system.

2. City, as respects its drainage system, was bound to take notice that timbers used in channels of drainage system would decay from time or use, and must take such measures as ordinary care would dictate to guard against breaking of flume, which resulted in flooding of plaintiff's property because of decay of timbers used in construction of drainage system.

3. City was under duty of exercising due diligence and reasonable degree of watchfulness from time to time in ascertaining conditions of several structures erected in creek as part of city's drainage system, flume of which broke and flooded property.

4. Duty of city to keep flume as part of drainage system in repair was not performed by waiting to be notified by citizens that it was broken and out of repair, causing adjoining premises to be flooded.

5. Rule that city, in absence of notice, express or implied, is not liable for damages accruing by reason of latent defects, as applied to "sidewalk cases," held not to apply to flooding of property by breaking of flume in city's drainage system, which it failed to inspect properly.

6. Where city diverted creek from natural channel and undertook to convey it in an artificial channel utilizing it as part of drainage system, it was liable for exercise of reasonable care and diligence in constructing channel of sufficient size to carry water that could reasonably be anticipated to flow down it, and for maintenance thereof in reasonably safe condition, failure of which resulted in flooding of lands of plaintiff and assignor when flume broke.

7. Purpose of C. S., sec. 3847, requiring claims for damages against cities of first class to be filed with city clerk within thirty days after time when claims accrue, specifying time, place, character and cause of damage, is to give notice of claim and opportunity to ascertain extent of injury investigate its cause, and determine liability of city.

8. Claims filed against city, for flooding of land from city's drainage system, containing items of damage to lawn, and for washing foundation of house and covering ground and floors of outbuildings with debris, and otherwise damaging property, held to permit evidence of damage to lily pond and shrubbery on lawn, and of damage to floor of dwelling.

9. Granting motion for leave to reopen case after both sides had rested and plaintiff had concluded argument to jury, in order to permit proof of assignment of another's claim for flooding of lands to plaintiff, and receiving proof, held within sound discretion of court.

10. Where record shows that, prior to commencement of action for flooding land, by breaking of city's drainage system another orally assigned claim for damages to plaintiff for collection, it was not necessary to allege or prove any other consideration for assignment to entitle plaintiff to maintain action on claim.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Clinton H. Hartson, Judge.

Action for damages. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

Clarence T. Ward, for Appellant.

The general rule is that municipalities are not liable for consequential injuries from public improvements causing surface waters to flow upon an adjacent private property or preventing it from flowing off such property. Especially is this true according to the general rule where the grading of a street causes the abutting lands to be below the level of the street. (6 McQuillin on Municipal Corporations, sec 2708, pp. 5569--5571, incl., and cases cited; Corcoran v. City of Benicia, 96 Cal. 1, 31 Am. St. 171, 30 P. 798; Little Rock v. Willis, 27 Ark. 572; Clark v. Wilmington, 5 Harr. (Del.) 243; Weis v. Madison, 75 Ind. 241, 39 Am. Rep. 135.)

Municipalities are not insurers of the condition of flumes constructed, maintained or controlled by them and the most that can be required is to construct and maintain them in a reasonably safe condition. (Miller v. Village of Mullan, 17 Idaho 28, 19 Ann. Cas. 1107, 104 P. 660; Goodman v. Village of McCammon, 42 Idaho 696, 247 P. 789; Ross v. Madison, 1 Ind. 281, 48 Am. Dec. 361; Evansville v. Decker, 84 Ind. 325, 43 Am. Rep. 86; Haynes v. Burlington, 38 Vt. 350; Willson v. Boise City, 20 Idaho 133, 117 P. 115, 36 L. R. A., N. S., 1158.)

A municipality is not liable for injuries caused by a defective flume in the absence of actual or constructive notice of such defect. (Miller v. Village of Mullan, supra; City of Evansville v. Behme, 49 Ind.App. 448, 97 N.E. 565; Chase v. City of Seattle, 80 Wash. 61, 141 P. 180.)

C. H. Edwards and Harry S. Kessler, for Respondent.

Where a city assumes to change and control the channel of the stream or to construct a breakwater or flume for the purpose of confining the flood waters therein and protecting property, it is not exercising a governmental duty or function as is required by law, but is rather exercising what is primarily private as opposed to a governmental function. (Strickfaden v. Greencreek Highway Dist., 42 Idaho 738, 751, 49 A. L. R. 1057, 248 P. 456; Boise Development Co. v. Boise City, 30 Idaho 675, at p. 688, 167 P. 1032; Baillie v. City of Wallace, 24 Idaho 706, 135 P. 850; Willson v. Boise City, 20 Idaho 133, 117 P. 115, 36 L. R. A., N. S., 1158; Eaton v. City of Weiser, 12 Idaho 544, 118 Am. St. 225, 86 P. 541; Wilson v. Boise City, 6 Idaho 391, 55 P. 887; Brown v. City of Salt Lake, 33 Utah 222, 126 Am. St. 828, 14 Ann. Cas. 1004, 93 P. 570, 14 L. R. A., N. S., 619; D'Amico v. City of Boston, 176 Mass. 599, 58 N.E. 158; Henry v. Lincoln, 93 Neb. 331, 140 N.W. 664, 50 L. R. A., N. S., 174; White on Negligence of Municipal Corp., sec. 667, cases note, 24; Cook v. City of Beatrice, 114 Neb. 305, 207 N.W. 518.)

One who purchases land and improves the same on the line of an artificial waterway constructed by a municipal corporation may rely upon such municipal corporation to perform the duty that it is under, of keeping such artificial waterway in repair and condition to carry all of the water that may flow therein from usual and ordinary causes, and may recover damages received by the negligent flooding of his land by waters from such artificial waterways. (Wilson v. Boise City, supra; Willson v. Boise City, supra; Boise Development Co. v. Boise City, supra.)

VARIAN, J. Budge, C. J., and Givens, T. Bailey Lee and Wm. E. Lee, JJ., concur.

OPINION

VARIAN, J.

Action for damages caused by flooding the premises of plaintiff and his assignor in January, 1925. The case was heretofore reversed on appeal from a judgment of nonsuit, wherein this court construed the sufficiency of the notice of damage required to be given the city under C. S., sec. 3847. (Dunn v. Boise City, 45 Idaho 362, 262 P. 507, 508.)

Hull's Gulch and Slaughterhouse Gulch, through which water from rain and melting snows drains from the foothills lying north and east of Boise, are natural drainage courses. Many years ago private citizens constructed certain flumes and other works to control the flood waters coming out of these two gulches which were later, and long before the damage here complained of, taken over by the city, which has from time to time erected dams in each of said gulches and repaired old flumes, constructed new ones, and in the case of Hull's Gulch laid a 33-inch galvanized iron pipe from the mouth of said gulch to the Cruzen Canal, through which the waters of said gulch were conveyed northeasterly to Sand Creek leading out of Slaughterhouse Gulch and eventually emptying into the Boise River. Sand Creek, for some years prior to the damage complained of, has been utilized by the city as part of a system of drainage to carry off the waters originating in both Hull's Gulch and Slaughterhouse Gulch. Much of Sand Creek has been flumed, part of which flume is on top of the ground, and an effort made to confine the stream within narrower limits in order to carry off the excess of sand and debris that comes down each season with the water from said gulches. The original course of Sand Creek has been followed in the construction of artificial works. Near the intersection of Irene and Twenty-fourth Streets, the city in 1917 constructed a flume across the canal of the Boise Water Company, designed to carry the full run off from Hull's Gulch and Slaughterhouse Gulch, flowing in Sand Creek, across said canal. Formerly, Sand Creek ran under said canal. On January 29, 1925, this flume, due to decaying of the timbers of which it was built, broke in the center, under the load of sand and water coming through Sand Creek, so that the said canal of the Boise Water Company became filled with water, sand, and debris, causing the canal to overflow and the water to flow upon the lands of plaintiff and his assignor and into the cellars of their houses, depositing large quantities of sand, slime and silt therein, damaging buildings, foundations, lawns and personal property. Immediately upon receiving...