Louisville and Jefferson County Metropolitan Sewer Dist. v. Kirk

• Decision Date: 07 May 1965
• Citation: 390 S.W.2d 182
• Court: United States State Supreme Court — District of Kentucky
• Parties: LOUISVILLE AND JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT, Appellant, v. Dr. Philip E. KIRK, Appellee.

Page 182

390 S.W.2d 182

LOUISVILLE AND JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT Appellant, v. Dr. Philip E. KIRK, Appellee.

Court of Appeals of Kentucky.

May 7, 1965.

Raymond F. Bossmeyer, James G. Becker, Louisville, for appellant.

Harry L. Hargadon, Sr., Henry V. B. Denzer, Louisville, for appellee.

STEWART, Judge.

This action was instituted by appellee, Dr. Philip E. Kirk, to recover damage to his residence at 739 Southwestern Parkway in the City of Louisville allegedly resulting from the breach of an easement contract by appellant, Louisville and Jefferson County Metropolitan Sewer District (hereinafter referred to as 'Metropolitan'), in failing to properly maintain a sewer beneath the house. The case was heard by a jury and resulted in a verdict and judgment of $13,000 for appellee.

In July of 1909, L. Simon and Lucy Simon conveyed an easement to the Commissioners of Sewerage of Louisville. Metropolitan was created and organized pursuant to KRS Chapter 76 enacted by the General Assembly in 1946; and that same year it took over from the Commissioners of Sewerage the Louisville sewer system, succeeding to all assets, rights, obligations and contracts of its predecessor.

Under a pretrial order it was stipulated, among other things, that liability, if any, arose solely from the 1909 contract whereby appellee's predecessors in title granted an easement for the construction and maintenance of a sewer and that Metropolitan, which was not a party to the contract, could only be liable on an implied contract pursuant to KRS 76.070(1), under the provisions of which it assumed operation of the Louisville sewer system.

On the trial it was shown a monolithiccast concrete sewer, five feet in diameter, was constructed in 1910 upon the easement granted. Between 1921 and 1931 the sewer was covered with twelve to fifteen feet of earth to make the land level with the street. In 1933 or 1934 a two and one-half story residence was erected above the sewer and in 1946 it was purchased by appellee. In 1952 Metropolitan repaired some deterioration on the inside of the sewer and in that same year appellee's residence began to show signs of structural damage.

It is appellee's theory that the defective condition of the sewer caused a leakage into it and that this leakage carried with it soil from beneath his residence until portions of the house sank, resulting in the damage for which he seeks recovery in this action.

In support of this theory a registered engineer and architect testified his examination of the interior of the sewer beneath appellee's property showed it was in a bad state and that there was a leakage into it. In this connection he stated: '* * * there were cracks across the top, there was water dripping into the sewer from the top, and there was some steel exposed.' A civil engineer gave as his expert opinion that the damage to the residence was caused by abnormal settling due to a carrying away of the subsoil over the sewer, thus lessening the density of the material over it and causing the soil to give away to pressure from above. Appellee testified that when he purchased the property in 1946 there were no observable structural defects in it, but in 1952 a corner of the basement garage floor dropped about two inches and subsequently there was considerable cracking, warping and twisting of different parts of the house.

Metropolitan's theory is that appellee's damage was due to a subsidence of the fill upon which his residence was located and that this had been caused or aggravated by the severe flood in 1937 which spread over this area. In support of this theory a civil engineer testified that in the neighborhood of appellee's residence he had observed depressions or sunken places in the earth's surface and also cracking in nearby houses which were not in the immediate vicinity of the sewer. It was his considered view as an expert that the settling of appellee's house was caused by its weight upon the fill which had been subjected to and weakened by flooding. A construction engineer testified his inspection of the sewer after the repairs in 1952 and again in 1957 demonstrated that it was tight and no water was coming into it from outside.

Metropolitan maintains the jury was permitted to speculate between conflicting inferences or conjectures as to the cause of the settling, with no more reason to accept appellee's than appellant's theory of causation, contrary to the rule stated in Fordson Coal Co. v. Whitt, 253 Ky. 484, 69 S.W.2d 992, and Kentucky Glycerine Co. v. Woodruff Development Co., 233 Ky. 325, 25 S.W.2d 736. However, the uncontradicted fact that appellee's damage began suddenly in 1952, at least twenty years after the fill was in place, eighteen years after the house was built and fifteen years after the flood, gives persuasive force to his argument as to why his house subsided. Furthermore, one of Metropolitan's witnesses, a civil engineer, indicated that any sinking which might occur to filled ground would become manifest within a reasonable time after the fill was made. Appellee asserts this evidence affords additional proof that the deteriorated condition of the sewer was the prime factor in causing the damage to his house. On this point we quote the following testimony of this witness:

'Q. Can you tell this jury, can you give any other explanation of the settling of this property, other than the defective sewer?

'A. Not if you rule out settlement in general, no sir.

'Q. You've already ruled out settlement, I believe, when you say that if this property remained stable from 1934 until 1946, that the settling would not have produced the damage, didn't you?

'A. If the fill was stable for a period of twelve to fifteen years, then I would say that it would not settle in the future....