Hart v. City of Neillsville

• Decision Date: 03 October 1905
• Citation: 104 N.W. 699,125 Wis. 546
• Parties: HART v. CITY OF NEILLSVILLE.
• Court: Wisconsin Supreme Court

125 Wis. 546

104 N.W. 699

HART

v.CITY OF NEILLSVILLE.

Supreme Court of Wisconsin.

Oct. 3, 1905.

Syllabus by the Judge.

A city having by its governing body duly adopted a plan for a sewage system and executed the same, it is not liable for injuries caused thereby to private property, not involving an unconstitutional taking thereof, produced by defects in such plan.

The basic principle of the rule aforesaid is that the due adoption of the plan requires the exercise by the governing body of the city of discretionary authority of a quasi judicial nature.

In case a city constructs a sewage system, not according to any plan, or according to any plan adopted in the manner aforesaid, the rule stated does not apply.

Where a pleading is open to construction, that reasonable meaning which will support it should be adopted, rather than one which will defeat it.

Though a city is not liable for damages to private property caused by mere defects in the plan of its duly adopted and executed sewage system, if it acquires knowledge of such defects and that unless they are remedied they will produce direct injury to private rights, it should exercise ordinary care to prevent such a result, and is responsible for damages caused by failure in that regard.

If, by reason of defects in a plan of sewage contemplating that private property will, as a matter of right, be connected therewith, such property is injured because of water accumulated in a sewer flowing therefrom through such a connection to such property, the injury is direct within the meaning of the last foregoing rule.

Where, as a matter of right, a private drain is constructed, connecting private property with a main sewer through an opening left by the city therefor, and damages result to such property by accumulated sewage flowing from such sewer to such property, the mere circumstance that without such drain no such result would have happened will not save the municipality from liability for such damages.

Appeal from Circuit Court, Clark County; James O'Neill, Judge.

Action by Hiram L. Hart against the city of Neillsville. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

This is an appeal from an order sustaining a demurrer to the complaint for insufficiency. The material facts stated in the pleading for a cause of action are these: For more than 20 years last past plaintiff has owned and occupied as a family home lots 5, 6, 16, 17, 18 and 19, block 8, Hewitt's Addition to the city of Neillsville. Under all parts of the dwelling house thereon there is a basement walled up with stone, and a well adjacent thereto upon which the family depend for a water supply. From time to time prior to July 3, 1903, without having adopted any system therefor, said city by its authorized officers constructed a sewer system and maintained the same to drain property abutting upon some of its streets. In July, 1902, at the expense of the owners of abutting property said city constructed a sewer along the street in front of plaintiff's lots for the purpose of draining such abutting property, plaintiff paying the cost thereof apportioned to his lots. An opening was left in such sewer to enable him to connect therewith a drain leading from his basement thereto. In October thereafter such connection was made. The sewer system of the city was negligently constructed and maintained in that no plan was adopted therefor by the city; the pipe on the street last mentioned from the outlet thereof was too small to properly dispose of the sewage turned into it; catch basins were so placed as to direct into the sewer surface water much in excess of its capacity, the sewer was not laid at a proper slope to make it efficient, a part of the sewer system was so constructed as to turn surface water flowing down a ravine known as “Goose Creek” into it, to such an extent as of itself to fill the pipe so that the added water from catch basins and ordinary drainage necessarily caused sewage to back up into the sewer in front of plaintiff's premises and through the pipe leading to his property into his basement. By reason of such defects, at various times between July 3, 1903, and March 24, 1904, such basement and the well aforesaid were flooded from the sewer, rendering the well useless and the home for considerable periods of time untenantable, and at other times unsuitable for residence purposes, causing the basement wall under the house to settle and to a considerable extent to fall, and the house to settle and crack and otherwise to be injuriously affected, to his damage in the sum of $1,500. The defendant knew during the time of the construction of the sewer system that it was not proceeding according to any plan having regard to the work that would be required of such system; that the work was being negligently done and that the system would be inefficient. After the system was constructed the defendant had notice of the insufficiency aforesaid which caused the damage complained of, and that such damages could be prevented by diverting the waters of “Goose Creek” from flowing into the sewer pipes, and enlarging the main pipe at the outlet leading into O'Neill creek. When plaintiff connected his basement with the sewer, as aforesaid, he did not know of any of the defects which thereafter caused the damages complained of. He was careful at all times to guard against his property being damaged in the manner in which it was. The damages were caused wholly by the negligence of the defendant, as stated.Marsh & Schoengarth (James Wickham, of counsel), for appellant.

Homer C. Clark (L. M. Sturdevant, of counsel), for respondent.

MARSHALL, J. (after stating the facts).

The learned trial court held the complaint to be fatally defective, supposing, from the facts alleged, that the injuries complained of were produced by defects in the original plan of the sewer; and that since such defects were rendered injuriously operative as to appellant's property by his voluntary act in connecting his private drain with the main sewer, the result was not referable to any fault of the respondent. The reasoning which resulted in such conclusions is embodied in an elaborate opinion by the judge containing a careful review of numerous authorities supposed to be in point.

While the law is well settled that, in case the governing body of a city, duly authorized thereto by its charter, adopts a plan for a sewage system and executes the same, it is immune from injuries resulting to private property, not involving an unconstitutional taking thereof, but which are referable to defects in the plan itself--Gilluly v. City of Madison, 63 Wis. 518, 24 N. W. 137, 53 Am. Rep. 299;Champion v. Town of Crandon, 84 Wis. 405, 54 N. W. 775, 19 L. R. A. 856;Schroeder v. City of Baraboo, 93 Wis. 95, 67 N. W. 27;Child v. City of Boston, 4 Allen (Mass.) 41, 81 Am. Dec. 680;Johnston v. District of Columbia, 118 U. S. 19, 6 Sup. Ct. 923, 30 L. Ed. 75; 2 Dillon's Municipal Corporations (4th Ed.) § 1051--the mere circumstance of the construction of a sewage system by the properly authorized officers of a city does not satisfy that rule. The basic principle thereof is that discretionary authority being vested in the governing body of a city to adopt a plan for a system of sewage, defects in a plan so adopted are referable to mere errors in judgment, and, as regards resulting liability for injuries to private rights, are governed by the same rule as mistakes generally in the exercise of quasi judicial authority. It follows necessarily that where such authority is not exercised at all, where though a system of sewage is constructed by a city without any plan therefor, passed upon and adopted by the governing body of the corporation, the reason for exempting it from liability for defects attributable to faults in the plan does not exist. It is not the mere construction of a sewage system by a city which exempts the corporation from liability for injuries caused by its operation growing out of defects in the plan thereof, but such construction according to a plan stamped with judicial approval, so to speak, of the proper governing body.

It has been held, as indicated by cases cited by appellant's counsel, that in order to satisfy the rule stated the city council must not only adopt a plan, but do so with sufficient care to warrant the belief that legal discretion was exercised in the matter; that action in reckless disregard of consequences, as by adopting a palpably defective plan, or adopting one without the aid of some skilled person, where that in all reason is required, cannot reasonably be attributed to mere error of judgment. City of Louisville v. Norris, 111...