Howlett v. City of South Norfolk

• Decision Date: 10 March 1952
• Docket Number: No. 3901,3901
• Citation: 193 Va. 564,69 S.E.2d 346
• Court: Virginia Supreme Court
• Parties: HARVEY L. HOWLETT v. CITY OF SOUTH NORFOLK. Record

Page 346

69 S.E.2d 346

193 Va. 564

HARVEY L. HOWLETT v. CITY OF SOUTH NORFOLK.

Record No. 3901.

Supreme Court of Appeals of Virginia

March 10, 1952.

Louis B. Fine and Robert C. Stackhouse, for the plaintiff in error.

R. E. Gibson, for the defendant in error.

JUDGE: HUDGINS

HUDGINS, C.J., delivered the opinion of the court.

Harvey L. Howlett, in this action against the City of South Norfolk, alleged that the city had negligently raised the grade of Wright avenue, the street in front of his residence, thereby causing surface water to flood his lot and stand under his dwelling, to his damage in the sum of $5,000. The jury returned a verdict for defendant, on which judgment was entered.

Plaintiff bases his right to recover entirely on the alleged negligence of the city in causing surface water to overflow the curbing gutter on Wright avenue and flood his lot.

The testimony for plaintiff tends to prove that in March, 1949, he moved into a newly constructed dwelling which he purchased from Robert B. Rowland, Jr., and wife, who acquired it by deed from W. D. Hobbs, Jr., and S. A. Thorpe, dated April 25, 1949. The dwelling was built on Lot No. 132, 50 X 100 feet, on Wright avenue in the city of South Norfolk. At that time no surface water inundated his lot or collected under his residence. In July, 1949, without notice to him, the city began its improvements on Wright avenue. It raised the grade of the street, built curbing, storm gutters and sidewalks. This was completed in December, 1949, after which surface water collected on his lot and stood 4 1/2 to 5 inches deep under his dwelling, flooding his furnace.

The testimony for defendant tended to prove that in 1927 the then owners of several acres, of which plaintiff's lot was a part, caused a plot to be made showing a subdivision of the entire area into lots, streets and alleys. Grades for the drainage of the streets, including the grade of Wright avenue, were established, and a plot of the subdivision approved October 10, 1927. At that time the land was covered with brush and standing trees, the diameter of some of which was 15 inches. That part of the subdivision lying on Wright avenue was not cleared until 1947, and then the holes made by the removal of stumps were not filled, nor was the terrain leveled.

On August 14, 1948, the city, on request of W. D. Hobbs, Jr., and S. A. Thorpe, the then owners of several lots in the 800 block on Wright avenue, issued permits for the construction of eight dwelling houses, including the dwelling now owned by plaintiff. At that time Wright avenue was open, but ungraded and unimproved. Surface water collected in many mudholes and depressions in Wright avenue.

This being the condition of the terrain, when the owners obtained the permits to construct the dwellings, they requested Irwin W. Dunning, the city engineer, to give them the proposed grade of Wright avenue. The engineer collected all available data, went upon the scene, and advised Hobbs that the walkway from the building to the street on Lot No. 138, the northwestern corner lot of Wright avenue and Chamberlin street, should be laid at the then level of the ground, and west of this lot the level should be raised one inch per fifty feet. Plaintiff's lot is approximately 300 feet west of Lot No. 138. Hence the ground level of the walkway on his lot should have been approximately six inches higher than the level of Lot No. 138. Instead of complying with these instructions, the owners built plaintiff's house to conform to a level of 6 3/4 inches lower than the elevation given them by the engineer, and seven inches lower than the unimproved alley at the rear from which surface water collects on his lot and under his house.

Defendant proved that it had long been its policy to install sidewalks 'when abutting property owners request such installation and agree to contribute their one-half' of the cost. All the owners (including plaintiff's predecessors in title) of lots abutting on Wright avenue were informed that 'Recently the Council has offered to install curbing and guttering whenever the abutting property owners request the same and agree to contribute one-half of the cost of this type of installation.' They were not required to pay any part of the cost of grading and surfacing the street.

On December 16, 1948, Thorpe and Hobbs, the then owners of plaintiff's lot, requested the city to make the improvements on Wright avenue, and agreed to pay their proportionate part of the cost. On February 17, 1949, the city notified the owners that it would make the improvements. However, actual construction was not begun until July 20, 1949, at which time the grade of Wright avenue was raised two inches higher than the grade given by the city engineer to Hobbs and Thorpe. This made the elevation of the street 8 3/4 inches higher than the elevation of plaintiff's lot.

An agreement of abutting property owners to pay a part of the cost of improvements to a street is not a valid defense to an action against the city, based upon its negligence in making the improvements, or in maintaining the street after the improvements have been made. The right of action does not arise on the mere adoption of plans for improvements. It arises when the actual installation of the improvements on the ground results in damage. Swift & Co. v. Newport News, 105 Va. 108, 52 S.E. 821, 3 L.R.A. (N.S.) 404; 63 C.J.S., Municipal Corporations, sec. 1258 c., p. 989.

The general rule is that a city, in adopting a plan for the improvement of its streets, or other public works, acts in a governmental capacity, but in the construction and maintenance of such improvements, it acts in a ministerial or proprietary capacity, and is liable for damages caused by its negligence. Hoggard v. Richmond, 172 Va. 145, 200 S.E. 610, 120 A.L.R. 1368; Norfolk v. Hall, 175 Va. 545, 9 S.E. (2d) 356.

It is conceded that the city raised the elevation of Wright avenue two inches higher than that adopted in 1927. However, there is no evidence tending to show that this change in the grade caused surface water to flow from the street and flood plaintiff's property.

Plaintiff proved by S. W. Armistead, civil engineer of thirty years' experience, that in order to drain plaintiff's lot the level of Wright avenue would have to be lowered one foot. On cross-examination, he said that the city was not careless or negligent in the plan adopted. 'As far as I can see, it is a well worked plan. The City Engineer of South Norfolk is interested in draining streets there, but didn't drain the land on the side of it in that block.' The city engineer testified that if the grade on Wright avenue were lowered one foot, it would be necessary to change the drainage plan of the entire area, and that the cost of the consequential changes would be prohibitive, or out of proportion to the benefits accruing therefrom.

This brings us to the question of surface water, which is defined to be that which is diffused over the surface of the ground, derived from falling rains and melting snow, and continues to be such until it reaches some well defined channel; or, as stated in 40 Cyc. 639: 'Surface waters are such as diffuse themselves over the surface of the ground, following no defined course or channel.'

The rights of adjacent land owners with respect to surface water is well settled in this State. Surface water is considered a common enemy, and each landowner may...