Levene v. City of Salem

• Decision Date: 21 March 1951
• Citation: 229 P.2d 255,191 Or. 182
• Parties: LEVENE et al. v. CITY OF SALEM.
• Court: Oregon Supreme Court

Page 255

229 P.2d 255

191 Or. 182

LEVENE et al. v. CITY OF SALEM.

Supreme Court of Oregon.

Argued Feb. 21, 1951.

Decided March 21, 1951.

Asa L. Lewelling, of Salem, argued the cause and filed a brief for appellants.

Chris J. Kowitz, of Salem, City Atty., Salem, argued the cause and filed a brief for respondent.

Before BRAND, C. J., and HAY, LUSK, LATOURETTE and TOOZE, Justices.

HAY, Justice.

The plaintiffs own and operate a veterinary hospital in the city of Salem. The hospital is conducted in a building owned by plaintiffs, located on the east side of the Pacific Highway upon an irregularly shaped tract of land, measuring roughly 78 feet by 350 feet, with its shorter side abutting upon the highway. The building is partly of wooden frame and partly of concrete construction, and has an area of about 20 feet by 40 feet. There is within plaintiffs' property a draw or gully running easterly, roughly at right angles to the Pacific Highway. The highway crosses the gully on a fill. Plaintiffs' building comprises a single story, at highway level, and a basement thereunder. The basement is erected upon the bed of the gully. It is of concrete, and is built entirely above ground. Along the bottom of the gully there is a small natural watercourse, having a bed of an average width of about three feet within banks varying in depth from about two feet to about eight feet. One corner of the plaintiffs' building formerly extended slightly into the bed of the stream, the water being carried under the building in two drain tiles. At the time of the happening of the incidents hereinafter referred to, the stream passed under the Pacific Highway through two 24-inch tiles.

The original complaint was filed August 17, 1948. It alleged substantially as follows: In the month of November, 1947, defendant city excavated a ditch approximately 650 feet long and 30 inches wide, having a maximum depth of four feet, draining water into said watercourse from an area which previously had only surface run-off. Such drainage had the effect of increasing the rate of speed of the run-off from said area. In or about the month of October, 1947, defendant extended a 14-inch tile, which had been laid on and along the easterly edge of the Pacific Highway, from a point approximately 400 yards south of plaintiffs' premises to and into said watercourse, which tile so extended discharged into said watercourse water which had not theretofore flowed therein. In the month of November, 1947, defendant laid approximately 57 feet of 30-inch tile in the bed of said watercourse, near the southeast corner of plaintiffs' building, but not connected with the 24-inch tiles running under the Pacific Highway. The laying of such tile had the effect of accelerating the flow of water in the watercourse, and increased the amount of water previously carried therein between the outfall of said 30-inch tile and the inlet of said 24-inch tile. Prior to December 29, 1947, said stream had never overflowed its banks to the extent of flooding the basement of plaintiffs' building, but on that date it overflowed its banks and flooded the basement of plaintiffs' building to a depth of 18 inches. On or about January 6, 1948, the stream again overflowed, and flooded said basement to a depth of 51 inches. Such flooding was proximately caused by the acts of defendant in constructing the ditches and laying the tile above referred to, while failing and neglecting to enlarge the capacity of the drainage of the stream under the Pacific Highway. Prior to performing such acts, defendant was aware of the fact that plaintiffs were using the building on their said premises as a veterinary hospital. The flooding of said building caused plaintiffs to suffer certain specified damages to real and personal property and to the good will of their business. They prayed for injunctive relief, for $7,556 damages, and for costs and disbursements.

Defendant city answered by general denial. On February 24, 1949, plaintiffs filed a supplemental complaint, wherein they alleged that, on the morning of February 10, 1949, said stream again overflowed, and flooded plaintiffs' basement to a depth of approximately seven feet, causing further damage to plaintiffs' personal property; and that, on the morning of February 17, 1949, it overflowed once more, and flooded plaintiffs' basement to a depth of approximately eight feet, causing further damage to plaintiffs' personal property and damage to their real property. In respect of these damages plaintiffs demanded judgment for an additional $6,755.36.

Defendant again answered by general denial, and affirmatively alleged that plaintiffs were contributorily negligent in the premises, in that, having known that the waters of the stream were rising and heavy rains were falling, and having had a last clear chance to remove their personal property from their building undamaged, they failed to do so.

After a hearing, the circuit court judge gave judgment in favor of plaintiffs in the sum of $100 with costs. They have appealed from such judgment.

Although the watercourse involved in this case is a very small one, nevertheless it comes within a definition of a watercourse approved by this court, i.e., 'a living stream of water, within well-defined banks and channel.' Simmons v. Winters, 21 Or. 35, 39, 27 P. 7, 8. Plaintiffs, as riparian owners upon the stream, are entitled to the rights and privileges of such ownership. Miller v. City of Woodburn, 126 Or. 621, 625, 270 P. 781. Included therein is the right to insist that the natural flow of the stream shall not, by artificial means, be increased to their detriment. 56 Am.Jur., Waters, 509, § 17; Kamm v. Normand, 50 Or. 9, 14, 91 P. 448, 11 L.R.A., N.S., 290, 126 Am.St.Rep. 698.

A municipality is liable in damages if it collects diffused surface waters into a drain, and, through such drain, empties them, either immediately or by force of gravitation, upon a person's land. Ulmen v. Town of Mt. Angel, 57 Or. 547, 550, 112 P. 529, 36 L.R.A., N.S., 140; Harbison v. City of Hillsboro, 103 Or. 257, 274, 204 P. 613. It is quite generally held that such action upon the part of a municipality amounts to a direct trespass. Annotation, 173 A.L.R. 1044. The gist of the injury complained of in the present case is the casting of an increased volume of water into the watercourse crossing plaintiffs' premises, without there being an adequate outlet therefor. Such a positive act is a tort 'arising from wrongful and unauthorized conduct rather than negligence, and the maxim that a man must so use his own as not unnecessarily to do injury to another is applicable.' 63 C.J.S., Municipal Corporations, § 883, p. 280. See also Rix v. Town of Alamogordo, 42 N.M. 325, 77 P.2d 765, 766; Ashley v. City of Port Huron, 35 Mich. 296, 297, 301, 24 Am.Rep. 552; Thoman v. City of Covington, 62 S.W. 721, 722, 23 Ky.Law Rep. 117. For damages directly resulting from such active wrongdoing the city is without immunity. Adams v. City of Toledo, 163 Or. 185, 191, 96 P.2d 1078; Weis v. City of Madison, 75 Ind. 241, 39 Am.Rep. 135, 139, 143.

Defendant city contends, however, that it may without liability drain surface water from land, by means of artificial ditches or tiles, into a stream or onto lands where it would naturally flow, even though such natural flowage is thereby accelerated. As an abstract statement, this is true, but in so doing the municipality must act with a reasonable consideration for the rights of the lower proprietor. If its acts cause an unusual and unreasonable amount of water to be emptied upon the lower land, it is liable in damages to the owner thereof. Whitney v. Willamette Ry. Co., 23 Or. 188, 191, 31 P. 472; Giaconi v. City of Astoria, 60 Or. 12, 31, 113 P. 855, 118 P. 180, 37 L.R.A., N.S., 1150; Annotation, 85 Am.St.Rep. 729, 730, 733; McQuillin, Municipal Corporations, 2d Ed., Rev. vol. 6, p. 1244, § 2874; 63 C.J.S., Municipal Corporations, § 882, pp. 274, 275.

Under the rule of the civil law in such cases, which has been adopted by most of the courts of this country, including this court, the owner of a tract of land of relatively higher elevation has the right to have diffused surface water flowing or coming naturally upon his premises pass through the natural channels of drainage onto or over a lower tract. The owner of the upper or dominant tract may construct thereon such drains and ditches for agricultural purposes as may be required by good husbandry, although such construction may result in increasing the flow of water in the natural channels. The owner of the lower tract has no right to complain of the increase, if the operations of the upper proprietor have been carried on with due regard for the lower proprietor's interests, and in such manner as to cause him no unreasonable inconvenience. Whitney v. Willamette Ry. Co., supra, 23 Or. 188, 193, 31 P. 472; Harbison v. City of Hillsboro, supra, 103 Or. 257, 272, 273, 204 P. 613; Rehfuss v. Weeks, 93 Or. 25, 32, 182 P. 137. Municipalities are governed in this connection by the same rules as natural persons. Harbison v. City of Hillsboro, supra.

The periodic flooding of plaintiffs' building brought about by defendant's acts constitutes a private nuisance. 39 Am.Jur., Nuisances, 298, § 16. The complaint, in seeking injunctive relief against such flooding, is based on nuisance. No doubt the nuisance was aggravated by the fact that the flood water carried a certain amount of polluted drainage onto plaintiffs' premises. Ulmen v. Town of Mt. Angel, supra, 57 Or. 547, 550, 112 P. 529, 36 L.R.A., N.S., 140; Kramer v. Sweet, 179 Or. 324, 331, 169 P.2d 892; Adams v. City of Toledo, supra, 163 Or. 185, 191, 96 P.2d 1078; Annotations, 75 A.L.R. 1197, 1202, 173 A.L.R. 1047; 38 Am.Jur., Municipal Corporations, 355, § 647; ibid. 357, § 648. Although the polluted drainage may have originated from dwellings within the drainage area, it was the defendant's acts in causing...