Giaconi v. City of Astoria

• Decision Date: 07 March 1911
• Parties: GIACONI v. CITY OF ASTORIA.
• Court: Oregon Supreme Court

113 P. 855

60 Or. 12

GIACONI v. CITY OF ASTORIA.

Supreme Court of Oregon

March 7, 1911

Appeal from Circuit Court, Clatsop County; J.A. Eakin, Judge.

Action by Joseph Giaconi against the City of Astoria. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This is an action to recover damages for an injury to real property. The complaint alleges, in effect, that defendant is a municipal corporation, authorized to grade streets within its boundaries, and in devising plans for such improvement and in performing the work is required to exercise care and skill that extending east and west along the side of a steep hill is Irving avenue, a highway of that city, which is intersected at right angles by Eighteenth street and next east thereof by Nineteenth street; that Grand avenue is next north of Irving avenue, and bounded on all sides by these highways is block No. 24, in Shively's Astoria, 300 feet square; that immediately north of that block, but separated therefrom by Grand avenue, is block No. 13, of the same area the north part of which extends into the Columbia river; that plaintiff owns a lot on the south side of block 13 having two buildings thereon, and also owns another building erected on the north side of that block; that on block 24 is a ravine extending to Irving avenue, which gulch is about 50 feet below the ordinary surface of the ground, 250 feet wide at the bottom from east to west in which direction it is nearly level, but slopes abruptly to the north; that this hollow is swampy to an unknown depth, containing numerous perennial springs from which large streams of water constantly flow and is incapable of sustaining any superadded weight rendering any attempt to make a fill thereon dangerous, all of which facts defendant well knew; that the marshy character of the gulch, its declivity, the proximity of plaintiff's property, and the apparent danger of a slide made it incumbent upon the city prior to adopting any plan for improving the ravine and before the work was commenced to ascertain the depth of the swamp to solid earth, if any, and to determine whether the foundation was sufficient to sustain any imposed weight, but it neglected to make any inspection or to provide any means to prevent a displacement of earth; that the council adopted a resolution declaring an intention to improve Irving avenue from the west line of Eighteenth street easterly, directing the city surveyor to prepare plans, specifications, and estimates of the improvements, the cost of which was to have been defrayed by a local assessment of all property within a specified district; that, without investigating the premises, the surveyor filed with the auditor plans and specifications which by reason of defendant's negligence failed to provide for the flowing water, or to drain the land, or to make a safe foundation for the fill, or to construct a bulkhead; that an ordinance was passed limiting the time and prescribing the manner of doing the work, but did not provide for any plan for the embankment, the enactment demanding that the improvement should be made according to the plans of the surveyor and under the defendant's supervision; that, pursuant to the ordinance, a contract was entered into by the city with W.A. Goodin, who, beginning to perform the work according to the plans and specifications of the surveyor and under the defendant's direction, negligently placed on the soft earth in the gulch a small wooden flume and a thin iron pipe to carry off the water, and by heaping clay on such conduits, without preparing any foundation or retaining wall, or draining the ground, the pipe and flume settled, and with knowledge thereof defendant negligently caused to be placed on the fill large additional quantities of earth, which immediately sank, causing stones, stumps, trees, and other material to be forced down upon and over plaintiff's property, injuring it to the extent of $2,000 for which sum judgment is demanded. The answer denied the material averments of the complaint, and alleged, inter alia, that the plans and specifications were carefully and skillfully prepared by the city surveyor, filed with the auditor, and approved by the council; that the fill was made without any negligence on defendant's part, and every precaution was taken to prevent injury, notwithstanding which a slide occurred that could not have been prevented by reasonable foresight or investigation; and that the improvement was made for the use and benefit of the public, and any injury plaintiff may have sustained was the result of an accident, and not occasioned by defendant's fault or negligence. A reply put in issue the allegations of new matter in the answer, and, the cause being tried without a jury, the court made findings of fact and of law conformable to the averments of the complaint, except that the damages suffered were only $975, for which sum a judgment was rendered for plaintiff, and defendant appeals.

J.F. Hamilton and A.W. Norblad, for appellant.

G.C. Fulton, for respondent.

MOORE, J. (after stating the facts as above).

The alleged failure to adopt a plan for the proposed improvement and defendant's averred supervision of the work will be considered. To render these questions intelligible requires a more detailed statement of facts than has been hereinbefore given. The resolution adopted by the council declaring an intention to improve Irving avenue required the city surveyor to make and file with the auditor plans and specifications for and estimates of the work, and provided that any matter of construction or drainage found necessary to make the improvement safe or substantial should be done by the contractor, whether specified or not, without extra charge. Pursuant to the resolution, the surveyor ran cross-section lines, examined the land, and filed with the auditor specifications for the improvement, which provided that cuts and fills should be made to make the highway conform to the established grade, and that on certain lines conduits of designated material and dimensions should be used. The established grade of Irving avenue at Eighteenth and Nineteenth streets is 185 and 191 feet, respectively, above low water on the Columbia river, which stream is nearly parallel with and about 500 feet from the avenue. Though the specifications filed provided for the disposal of surface water, the draining of block 24 was not required, nor was any bulkhead or other means suggested to prevent a possible slide. The ordinance limiting the time and prescribing the manner of the grading demanded that the performance of the work be let to the lowest bidder, and that "the contract shall provide that said improvements shall be constructed and completed to the satisfaction of the...