Knostman & Petersen Furniture Co. v. City of Davenport

• Decision Date: 26 October 1896
• Parties: KNOSTMAN & PETERSEN FURNITURE CO. v. CITY OF DAVENPORT.
• Court: Iowa Supreme Court

99 Iowa 589

68 N.W. 887

KNOSTMAN & PETERSEN FURNITURE CO.

v.CITY OF DAVENPORT.

Supreme Court of Iowa.

Oct. 26, 1896.

Appeal from district court, Scott county; C. M. Waterman, Judge.

Action at law to recover damages from defendant city for causing the overflow of water upon the plaintiff's property. Trial to a jury. Verdict and judgment for plaintiff. Defendant appeals. Reversed.E. M. Sharon, for appellant.

Davison & Lane, for appellee.

DEEMER, J.

Plaintiff is a corporation engaged in the manufacture of furniture. Its factory is situated upon the south side of East Front street in the defendant city, and faces north thereon. Wall street and Mississippi avenue are streets which intersect with Front street on the north side thereof; the former just west, and the latter east, of the plaintiff's factory. These two streets run north and south, and have a decided upgrade to the north, and the surface water from 20 or 30 acres of ground is cast upon these streets, and conveyed down to Front street. At times of heavy rains the volume of water which comes down these streets is quite large. Front street, from a point about 90 feet east of plaintiff's property, has a descending grade to the west, and towards plaintiff's place of business, and the surface water thereon runs in that direction. Prior to the year 1892, the city had constructed ordinary culverts at the intersections of Mississippi avenue and Wall street with Front street, which carried the water which came down these north and south streets under Front street, and into the Mississippi river. In the summer of that year the defendant paved Front street for a long distance on either side of the plaintiff's property, took out the culverts before referred to, and in place thereof substituted iron drain pipes or sewers. These pipes were smaller than the culverts which they replaced, and were covered at the north end with an iron grating or cross bars. In the month of April, 1893, a very heavy rainfall occurred, and the water which was collected on the two north and south streets came down in such volume and with such velocity as to overflow Front street, and run into plaintiff's factory, flooding the same with water, mud, dirt, and refuse, tearing down a portion of the retaining wall built in front of the property, breaking some of the windows, damaging the machinery, and spoiling some of the goods which were in process of manufacture. This action is to recover the damages sustained, and the negligence declared upon is that the city put in too small iron pipes to carry off the water; that it made the opening into the sewer too small, and caused it to be obstructed by the iron grating; that it failed to put in proper inlets or catch basins, or to furnish proper means to drain and carry off the water which runs down and along Front street during and after rains. The answer admits the paving of Front street, but denies the other allegations of the petition. The defendant also pleads that the improvement of Front street was done under the care and supervision and in accord with the plans of a competent engineer selected for that purpose, and further avers that, if plaintiff was damaged, it was due to an unusual and extraordinary fall of rain, and to want of proper precautions and safeguards on the part of the plaintiff. The verdict of the jury on these issues was for the plaintiff as we have stated.

The sixth instruction which the court gave to the jury was as follows: “Sixth. Even though the plan as adopted for such gutters and culverts, including the inlets, was approved in whole by a competent engineer, yet if, after such drains or gutters were constructed, it reasonably appeared that they were insufficient to carry off such quantities of water as would probably seek an outlet through them, then it was the duty of the city to use ordinary diligence to make such changes as appeared reasonably necessary to make them serve the purpose intended. And if in this case, without regard to the degree of care the city may have used in making plans for the construction of said gutters and culverts, you find they were insufficient for the work intended, and that, after they were completed, the city, through its officers or agents having general charge of this department of work, had notice of such insufficiency; and if such notice was given long enough prior to the injury to the plaintiff's property to have reasonably enabled said city to effect the changes necessary to put these waterways in such condition that they would perform the work for which they were designated, then you must find the city to have been negligent.” The correctness of this instruction is challenged by appellant. It insists that, if the drain and inlet were constructed in accordance with the plans of a competent engineer employed by the city for the purpose, it is not liable in damages for the results of the overflow; and it asked an instruction to this effect, which was refused by the court. The argument is that the city acted judicially in determining upon the sufficiency of the plans, and that it incurred no liability if it used ordinary and reasonable care in the selection of a competent engineer, and followed his plans in constructing the drain; that its only duty thereafter was to keep the premises in the condition in which they were planned and constructed; or, to use counsel's language, “if the city was not liable for its insufficiency when it was planned and constructed, it never would be.” That the general rule is as claimed by appellant's counsel must be conceded. The best statement of it we have found is that made by Judge Dillon in his work on Municipal Corporations (4th Ed., vol. 2, § 1046), which is as follows: “Since the duty on the part of a municipality of providing drainage for surface water or constructing sewers is in its nature judicial or quasi judicial, or, more accurately speaking, legislative, requiring the exercise of judgment as to the time when and the mode in which it shall be undertaken, the claims of the respective localities as to order of commencement, when it cannot be affected at once, and the best plan which the means at the disposal of the corporation renders it practicable to adopt, it follows upon legal principles that the corporation is not liable to a civil action for wholly failing to provide drainage or sewerage, nor probably for any defect or want of efficiency in the plan of sewerage or drainage adopted; nor, according to the prevailing view, for the insufficient size or want of capacity of gutters or drains for the purpose intended; that is, for carrying off surface water, particularly if the adjoining property is not in any worse position than if no gutters or drains whatever had been constructed.” This is the rule which has been adopted by this court. Van Pelt v. City of Davenport, 42 Iowa, 308;Hoehl v. City of Muscatine, 57 Iowa, 444, 10 N. W. 830; Powers v. City of Council Bluffs, 50 Iowa, 201; Ferguson v. Davis Co., 57 Iowa, 608, 10 N. W. 906. To the section just quoted from Dillon it is important to note that the author, in the last edition of his work, added the following: “So the text substantially stood in the previous editions. We now add that the later cases tend strongly to establish, and may, we think, be said to establish, and in our judgment rightly to establish, that a city may be liable on the ground of negligence in respect of public sewers solely constructed and controlled by it, where, by reason of their insufficient size, clearly demonstrated by experience, they result, under ordinary conditions, in overflowing the private property of adjoining or connecting owners with sewerage, and that the principle of exemption from liability for defect or want of efficiency of plan does not, as more fully stated below, extend to such a case.” In other sections of his work the author also attempts to distinguish between drains constructed as a part of a street improvement to carry off and dispose of surface water, and common or public sewers, constructed to provide for and dispose of the sewage of cities; contending for the doctrine that in the former case there is no liability if experience proves the plan to be defective, while in the latter case the city must respond on the ground of public policy. The general rule to which we have referred, and which was adopted by this court more than 20 years ago, seems to be supported by abundant authority. Vide Hession v. Mayor, etc. (Del. Super.) 27 Atl. 830; City of Atchison v. Challis, 9 Kan. 603; Steinmeyer v. City of St. Louis, 3 Mo. App. 256;Mills v. City of Brooklyn, 32 N. Y. 489; Darling v. City of Bangor, 68 Me. 108; Fair v. City of Philadelphia, 88 Pa. St. 309; Child v. City of Boston, 4 Allen (Mass.) 41;Merrifield v. City of Worcester, 110 Mass. 216;City of Terre Haute v. Hudnut, 112 Ind. 542, 13 N. E. 686;Dermont v. Mayor, etc., 4 Mich. 435;Henderson v. City of Minneapolis, 32 Minn. 319, ...