Fair v. City of Philadelphia

• Decision Date: 10 March 1879
• Citation: 88 Pa. 309
• Parties: Fair <I>versus</I> City of Philadelphia.
• Court: Pennsylvania Supreme Court

88 Pa. 309

Fair versus City of Philadelphia.

Supreme Court of Pennsylvania.

January 10, 1879.

March 10, 1879.

January 10th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.

Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of July Term 1879, No. 33.

David W. Sellers and Henry McIntyre, for plaintiff in error.— While it may be optional with the city to construct sewers, when they have constructed them and citizens rely upon them, it is the duty of the city to keep them unobstructed: Child v. City of Boston, 4 Allen 41. When a citizen has adequate drainage for his premises its destruction by the muncipality is a good cause of action: Commissioners v. Wood, 10 Barr 93; Munn v. Pittsburgh, 4 Wright 364; Borough of Allentown v. Kramer, 23 P. F. Smith 406.

C. E. Morgan, Assistant City Solicitor, and Wm. Nelson West, City Solicitor, for the city.—The proximate and direct cause of the injuries complained of was, first, the backing of surface water upon plaintiff's property; and, secondly, the indirect and remote cause was the plan of sewerage adopted by the city, which permitted two sewers to meet at right angles, so that the flow of the contents of one would have the effect of retarding that of the other.

That a municipality is not liable for damages resulting from a lawful exercise of her discretionary power to plan and construct sewers and other improvements, has been repeatedly decided by this court. Carr v. Northern Liberties, 11 Casey 324; Grant v. Erie, 19 P. F. Smith 420; Borough of Allentown v. Kramer, 23 P. F. Smith 406; Dillon on Corporations, p. 932; Smith v. The Mayor, 66 N. Y. 295.

Mr. Justice MERCUR delivered the opinion of the court March 10th 1879.

This was an action on the case. The plaintiff claimed to recover damages which he had sustained, by reason of the insufficiency of the public sewer to carry off the surface water which accumulated on his premises. The case was submitted to a referee. He found the facts and stated his conclusions of law. No exceptions were filed as to the correctness of his finding of facts. The exceptions to his conclusions of law, finding the city was not liable for damages, were overruled and judgment entered for the defendant. This presents the alleged error.

It appears that the house of the plaintiff was situate at the corner of Thirteenth and Fitzwater streets. Formerly, the sewer in that vicinity was of sufficient capacity to pass, and did pass, rapidly, not only the water with which it was otherwise charged, but also the surface water which either fell or flowed on the land of the plaintiff. Afterwards and before the injury complained of the city extended its system of sewerage westerly, thereby causing a larger volume of water to flow through the sewer past the premises of the plaintiff. During violent storms the sewer was so charged with water as to prevent the surface water, which accumulated on the lot of the plaintiff, from flowing into, and through the sewer, thereby causing the injury of which he complains.

The unquestioned finding of facts establishes not only that the whole injury was caused by surface water which accumulated on the premises of the plaintiff, but that none of it was thrown there by reason of the construction of the new sewer. None of the water...