Elliott v. Oil City

• Decision Date: 28 October 1889
• Docket Number: 161
• Parties: ISABELLA ELLIOTT v. OIL CITY
• Court: Pennsylvania Supreme Court

18 A. 553

129 Pa. 570

ISABELLA ELLIOTT v. OIL CITY

No. 161

Supreme Court of Pennsylvania

October 28, 1889

Argued October 9, 1889

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF VENANGO COUNTY.

No. 161 October Term 1889, Sup. Ct.; court below, No. 18 January Term 1885, C.P.

On December 16, 1884, Isabella Elliott brought case against the city of Oil City to recover damages for injuries alleged to have been done to her property by the negligent acts of the defendant. Issue.

At the trial on May 13, 1869, the plaintiff introduced evidence to show that she owned a lot about forty-five feet wide and one hundred and fifty feet long, situated in a depression of the ground, forming a natural water course, some of the witnesses calling it a ravine. The Salem turnpike ran through the front portion of her lot, cutting it into two portions. On the lower portion of the lot was situated a house, and back of the house a garden. The turnpike running through the lot had under it, just above the house, a small sewer to carry off the waste water. In June, 1883, a flood occurred which caused considerable damage to the plaintiff's property, but it was conceded that for this the city was not liable. In the fall of 1883, however, the city went upon the ground and constructed a larger sewer under the turnpike, in place of the small sewer. The plaintiff claimed that by reason of the increased flow of water through the larger sewer her property was injured.

At the close of the testimony, the court, TAYLOR, P.J., charged the jury in part as follows:

The plaintiff claims here for alleged injury occasioned by the construction of a sewer by the city authorities, sometime in the fall of 1883, after the flood -- what was termed by the witnesses, the big flood, which washed down the roads and everywhere left things in bad condition.

That there was an injury, at that time, to the plaintiff's lot, and that it was a pretty serious one, is evident, for shortly thereafter the plaintiff complained to the city authorities, who went upon the ground, and, after that, the larger sewer was put in. There had been one, a foot square perhaps, and after that a larger one, some two feet square was put in. From that time on, the plaintiff claims that she is entitled to recover damages for injury that she sustained. What damages has she sustained since that big flood of 1883?

The plaintiff's theory is that defendant constructed a little obstruction just above in the ditch of the turnpike, so that it turned all the water that came down the hill across her lot; that more water was thrown across her lot by reason of some sewers that were put in above or by reason of some streets being excavated, and that more water was caused to flow through this culvert than the natural watershed. They claim that this damming up of the stream, and the putting in of the culvert was negligently done by the city; that they ought not to have put in such a culvert there without providing some other means to take the water off from this property; that a larger quantity of water is caused to flow there, and that each year she has been sustaining some damages down to the present time, and that every heavy rain that comes injures her property; that, by reason of this increase of water there, added to the natural flow, her house, garden and well have been injured to quite an extent and some fruit trees washed away. That is the plaintiff's theory.

The defendant's theory, and what they ask you to find, is that the city had nothing to do with this, until after the great flood of June, 1883, and that at least three fourths of the damage that ever was done to the property was done by that flood, which was prior to their having anything to do with it. They say, too, that the cutting away of the timber and the making of streets had made the effect of storms more serious and increased the natural flow of water; that when they put this sewer in, the first you have any knowledge they had anything to do with it, the water in every heavy rain would overflow and go over the lot below, and for that reason they put the larger sewer there; that no more water has passed through there than the natural watershed would throw off, or, if there be more water, the increase has been caused by the clearing up of the country, etc.; that, in addition thereto, a part of the water that would naturally flow this way into the ravine has been taken off by a sewer put in at Orange street, and thereby the flow of water has really been lessened across this lot; that it is less now than it was before the sewer was put there by the city. They ask you to find, too, that the plaintiff did nothing; that she was guilty of contributory negligence by reason of sitting idly by and allowing her property to be wasted away each year, and for that reason she cannot recover for anything which has occurred since the flood of June, 1883. That is the defendant's theory.

The rule of law covering this case is very brief. It is simply this: That every person is bound to bear the burden of water that would naturally flow upon his land and no other. A person who builds a house in a ravine is bound to sustain any injuries which may occur from the natural flow of water into that ravine, and he is not bound for anything further than that. If, by any means, a larger quantity of water is thrown upon him by the defendant's act, than the natural flow of the watershed would contain, and injury results thereby without fault of plaintiffs, then they may recover compensation for whatever damage they have sustained by reason of this increase of the water flow, taking it together with the ordinary water flow.

This claim is founded upon negligence. That is, the plaintiff claims that the city negligently constructed a sewer there or negligently put across a little barrier, thereby causing more water to be thrown upon her lot than the natural watershed.

* * *

If you find that, by reason of the construction of the culvert, or by any means, the defendant caused a larger flow of water than what would naturally escape from the natural watershed, and the plaintiff was injured thereby, without any negligence, or omission, or concurrent contributory negligence to such injury on the part of the plaintiff, she is entitled to recover. If, upon the other hand, you find that since the construction of the sewer complained of, no more water is turned therein than the natural flow of the watershed drained, or, if you should find that there is more water flowing there, yet if the plaintiff is guilty of contributory negligence, in the slightest degree, which contributed to the injury to her property, your verdict should be for the defendant.

If you find for the plaintiff, you will assess the damages at what...