Meridian, City Of, v. Sullivan, 37477

• Decision Date: 24 April 1950
• Docket Number: No. 37477,37477
• Parties: CITY OF MERIDIAN v. SULLIVAN.
• Court: Mississippi Supreme Court

Page 851

45 So.2d 851

209 Miss. 61

CITY OF MERIDIAN v. SULLIVAN.

No. 37477.

Supreme Court of Mississippi, in Banc.

April 24, 1950.

Dunn & Singley, Meridian, for appellant.

M. V. B. Miller, Meridian, Gerald Adams, Meridian, for appellee.

HALL, Justice.

The city appeals from a judgment against it in the sum of $1,500.00 for damages alleged to have been caused to appellee's property because of the diversion of drainage water upon it. The declaration was in one count and charged that the city had changed the course of a natural drain or small branch which crosses appellee's property and which also crosses two of the city streets, one on each side of her property, through box culverts constructed by the city; that appellee had constructed a box culvert across her property, connecting with those of the city on either side; that the city broke a large hole in appellee's culvert and negligently failed to keep its own culverts free from obstructions, as a consequence of which large quantities of water were caused to flow through said hole and upon the surface of appellee's property to the extent that much of the soil was swept away, the fences destroyed, and the dwelling and outhouses undermined and damaged.

Before the trial the city made a motion to either dismiss the action or require plaintiff to elect which of the three separate and inconsistent causes of action she would stand upon. She withdrew the allegation that the course of the stream had been changed, and the trial court overruled the motion as to that which then remained in the declaration. That action is the basis of appellant's first contention for reversal, and, in this connection, it is argued that the declaration still contained two separate and independent causes of action in one count, viz., the city's trespass in breaking the large hole in the top of appellee's culvert, and its negligence in failing to keep its own culverts free of obstructions. It is well to bear in mind that our statute only requires that a declaration 'contain a statement of the facts constituting the cause of action, in ordinary and concise language, without repetition; and if it contains sufficient matter of substance for the court to proceed upon the merits of the cause, it shall be sufficient.' Section 1464, Mississippi Code of 1942. While the entry upon appellee's land and the breaking of a hole in her culvert would give rise to a cause of action for nominal damages and a small amount of actual damages necessary to repair the culvert, which damages were not claimed in the declaration, the gravemen of the complaint is that because of this large hole the water was diverted from the culvert onto appellee's land when the city negligently failed to keep its own culverts free from obstructions. It is at once apparent that if the city kept its culverts open there was no way for water to flow through the top of appellee's culvert and damage her property to the extent shown by the record here, but when the city's culverts became obstructed and prevented the flow of water...