Imler v. City of Springfield

• Decision Date: 31 January 1874
• Citation: 55 Mo. 119
• Parties: PETER IMLER, Respondent, v. CITY OF SPRINGFIELD, Appellant.
• Court: Missouri Supreme Court

55 Mo. 119

PETER IMLER, Respondent,

v.CITY OF SPRINGFIELD, Appellant.

Supreme Court of Missouri.

January Term, 1874.

Appeal from Greene Circuit Court.

Crawford & Cravens, for Appellant, cited in argument Turner vs. Dartmouth, 13 Allen 291; 3 Kent, 452; Gale & Wh. Eas., 182; Gannon vs. Hargadon, 10 Allen 106; Franklin vs. Fisk, 13 Allen, 211; Flagg vs. Worcester, 13 Gray, 601; Goodale vs. Tuttle, 29 N. Y., 459.

John P. Ellis for Respondent, cited among others the following authorities: Mayor vs. Furze, 3 Hill, 612; Wilson vs. Mayor of New York, 1 Denio, 595; Mills vs. City of Brooklyn, 32 N. Y., 489; Dil. Mun. Corp., § 802; Rose vs. City of St. Charles, 49 Mo., 510; Brine vs. Railway Co., 110 Eng. Com. L., 402; Sprague vs. Worcester, 13 Gray, 193; Perry vs. Worcester, 6 Gray, 544; Proprietors of Locks vs. Lowell, 7 Gray, 223; Flagg v. Worcester, 13 Gray, 601; Barton vs. Syracuse, 36 N. Y., 54; Conrad vs. Ithaca, 16 N. Y., 158; City Council vs. Gilmer, 33 Ala., 116; Cotes vs. Davenport, 9 Iowa, 287.

VORIES, Judge, delivered the opinion of the court.

This action was brought in the Greene Circuit Court, to recover damages from the defendant for having so carelessly improved and obstructed its streets, as to cause the water to flow into plaintiff's cellar, by which he was damaged.

The petition contained two counts, but inasmuch as judgment was rendered in favor of the defendant on the second count, from which no appeal has been made, it need not be noticed by this court.

The first count in the petition, after stating that the defendant is a municipal corporation, authorized by its charter to pass ordinances to open, alter, widen, vacate, grade and pave its streets and sidewalks, and improve the same, and to drain and keep the same clean; and to build sewers on or in said streets and alleys and to repair and keep the same clean; and that the defendant by its character had the exclusive control of all streets avenues, lanes and alleys, proceeds to aver that on or about the third day of May, 1870, the plaintiff was the owner and in the possession of a lot on Booneville street, in said city, with a brick store house situate thereon, and which fronted on said street, in which said house, plaintiff was engaged in the business of selling merchandize; that the defendant on or about the first day of May, 1870, and subsequently thereto, wrongfully and negligently obstructed said street and highway in front of said business house of plaintiff, by placing stone, gravel and earth in the same, by which the drain or gutter in which the surface water, falling and flowing on said street, was carried off from said street, was filled up and destroyed; so that the surface water falling and flowing on said street, was by such wrongful and negligent act of the defendant, carried and flowed into the cellar in plaintiff's said house; by which, said house and the goods in the cellar thereof, were injured and damaged, and plaintiff's business delayed and injured; by all of which plaintiff avers that he is damaged in the sum of one thousand dollars, for which judgment is prayed.

To this count in the plaintiff's petition, the defendant in its answer thereto denies that it is by its charter authorized, empowered or required to drain the streets of said city, or to build sewers, or to keep the same clean and in repair, except so far as may be necessary for the well being of said streets. It denies that at the time charged, or at any time, it wrongfully or negligently obstructed said Boonville street, in front of plaintiff's premises as charged; and denies that it obstructed said Boonville street in front of plaintiff's premises, either carelessly or unlawfully.

The defendant then as a further answer to said first count, states that on the nineteenth day of October, 1869, it by the City Council passed an ordinance entitled, “An ordinance changing the established grade of Boonville street north of the bridge,” approved October 19th, 1869, and numbered Ordinance 59, by which ordinance the then established grade of said street was changed, whereby said street was to be raised in front of plaintiff's said house, and that afterwards on the 1st day of May, 1870, and for divers days afterwards, in pursuance of said ordinance and for the purpose aforesaid, and none other, said defendant did under the supervision of its City Engineer deposit the stone, earth and gravel in said count complained of against it, and, without this, said street was by defendants in nowise obstructed, nor was any supposed gutter, channel or drain in any manner injured or destroyed; and it denies that any such deposit as is charged in said count was wrongfully, negligently, or carelessly made, or that plaintiff was injured or damaged by any wrongful act of defendant in the premises.

To the affirmative part of this answer, the plaintiff replied, denying the passage of the ordinance set forth in the answer, or that the work named in the answer was done under the supervision of the City Engineer, and also puts in issue the other facts stated in the answer.

Motions were filed by the respective parties to strike out part of the answer and replication, but as no point is made on the action of the court in reference thereto, they need not be noticed here.

A jury was waived by the parties and a trial of the cause had before the court. It appears by the evidence in the cause, that Boonville street in the City of Springfield, where the same passes in front of the plaintiff's lot and house, is situate on rather low wet ground at the foot of a hill or rising land, which rises from the opposite side of the street, from where plaintiff's house is situated, and perhaps in other directions; that the surface water falling upon these elevated lands, and which would be produced by the melting of snow falling thereon, would naturally flow down upon the street and along the street, and along low places in the immediate vicinity of the plaintiff's house; that there was a small ditch or gully along the side of the street on which plaintiff's house was situate, along which the surface water was drained off and prevented from accumulating around the plaintiff's house and premises, but that a large quantity of the surface water usually ran and accumulated in said street; the same being rather lower in the center than at the edges of the street. This water softened the ground and made the street a muddy and inconvenient highway. It appears that in the month of May, 1870, the city in pursuance of an ordinance passed for said purpose, commenced raising the grade of said street in front of, and continuing on each side of plaintiff's house; that six or eight months intervened between the commencement of this work, and the time it was finished and macadamized; that while the workmen were placing the gravel, stone and earth upon the street, they placed the small stones which were mixed with the earth so deposited on the street, along each edge of the street, so as to be convenient to be used in macadamizing the street after the grading was finished; that in doing this work the small drain along the side of the street, by and through which the surface water was withdrawn from the low ground along the side of the street where plaintiff's house was situated, became filled up so that the water could not pass through it; that while this work was being performed and before it was completed, two unusually heavy rains fell upon the grounds around, and in the vicinity of plaintiff's house; that the surface water was caused to flow over the elevated ground, or some of it ran from the hill across Boonville street, and other waters accumulated from other directions around the property of plaintiff and other adjoining proprietors; that the water ran around the house of the plaintiff, percolated through the cellar wall and filled his cellar some two or three feet deep and injured his goods to the amount of about two hundred dollars. It was also shown that this water would probably have escaped from plaintiff's premises and left him uninjured, if the little ditch along the side of the street had remained open.

The evidence also tended to show, that plaintiff after the first rain which injured his cellar, had notified the city authorities of the fact, and demanded pay for the damages, and that there was some talk between the plaintiff and the street commissioner in reference to raising the sidewalk...