Flanders v. City of Franklin
| Decision Date | 16 March 1900 |
| Citation | 70 N.H. 168,47 A. 88 |
| Parties | FLANDERS v. CITY OF FRANKLIN. |
| Court | New Hampshire Supreme Court |
Appeal from probate court, Merrimack county.
Action by Fred E. Flanders against the city of Franklin to recover damages for flooding plaintiff's land. From a finding by the referee in favor of plaintiff, defendants appeal. Reversed.
Case for negligence in allowing a sewer, culvert and brook in Prospect street to become filled up, out of repair, and insufficient to carry off the water, in consequence of which it flowed down Winnipiseogee street onto the plaintiff's land. Trial by a referee. The land slopes from Prospect street westerly down Winnipiseogee street to the plaintiff's land, on Railroad avenue. Prior to 1887 there was a depression in the Shepard lot, just west of Prospect street, through which the water collecting in Prospect street and vicinity flowed off. About 1887 the owners filled up the depression, and laid an 8-inch drain pipe in its place. In 1889 the defendants constructed a covered drain 18 inches square across Prospect street, and connected it with the Shepard pipe. This drain was designed to take the water from the Sturtevant lot, lying east of Prospect street, and also from the street About the same time they built a similar drain across Prospect street, 200 feet further south, and connected it with the Shepard pipe. This was to drain the Schlegel land and take the water from the street. In 1897, during the largest rainfall since 1869, the Shepard pipe proved insufficient to carry off the water coming to it; and as a consequence the water flowed down Winnipiseogee street, and washed large quantities of sand upon the plaintiff's land. These results were not caused by the defendants' negligence, as alleged, but were caused by the faulty and insufficient system of drains; the Shepard pipe being of insufficient capacity to carry off the water coming to it from the other pipes. If the natural water course through the Shepard land had not been filled up, the plaintiff's land would not have been damaged. Upon the opening of the case the defendants called attention to the fact that the declaration only charged negligence in allowing the sewer to become filled up. The plaintiff replied that he would ask for leave to amend by charging a faulty system of construction, and repeated the statement in the closing argument. The defendants objected upon the ground that it was too late to cite in the owners of the Shepard land. Later the plaintiff filed a proposed amendment, to the allowance of...
To continue reading
Request your trial
-
Burke v. Boston & M. R. R.
...because an abandonment of the protective feature of the old road could be found not to be in excess of the town's rights. Flanders v. Franklin, 70 N. H. 168, 47 A. 88. If it was not in excess of the town's rights, it was not an invasion of the defendant's rights. Not being an invasion of th......
-
O'Brien v. Rockingham County
...Wheeler v. Gilsum, 73 N. H. 429, 62 Atl. 597, 3 L. R. A. (N. S.) 135; Clair v. Manchester, 72 N. H. 231, 55 Atl. 935; Flanders v. Franklin, 70 N. H. 168, 47 Atl. 88; Gilman v. Laconia, 55 N. H. 130, 20 Am. Rep. 175. These cases are placed upon the liability of a landowner for the maintenanc......
-
Cannata v. Town of Deerfield, 88-061
...and maintenance unreasonably have invaded the plaintiffs' property rights. See Allen v. Hampton supra; Flanders v. Franklin, 70 N.H. 168, 169, 47 A. 88, 89 (1899). We therefore hold that the trial court improperly dismissed the plaintiffs' claims against the town in counts four and The defe......
-
Maben v. Olson
...16 Ohio St. 334, would never have been made under our statutes; so of O'Brien v. City of St. Paul, 18 Minn. 176; and of Flanders v. Franklin, 70 N.H. 168 (47 A. 88), which, in addition, turned off on a practice point the necessity for remand to the trial court. It may be conceded that the c......