Morley v. Village of Buchanan

• Decision Date: 15 May 1900
• Citation: 124 Mich. 128,82 N.W. 802
• Court: Michigan Supreme Court
• Parties: MORLEY v. VILLAGE OF BUCHANAN.

82 N.W. 802

124 Mich. 128

MORLEY v. VILLAGE OF BUCHANAN.

Supreme Court of Michigan

May 15, 1900

Error to circuit court, Berrien county; Orville W. Coolidge, Judge.

Action by Burton T. Morley against the village of Buchanan for damages caused by a change of street grade and destruction of a gutter wall. From a judgment in favor of defendant plaintiff brings error. Reversed.

Edward Bacon, for appellant.

Alison C. Roe, for appellee.

LONG J.

The court below directed the verdict in favor of defendant. Plaintiff brings error.

It appears that the plaintiff has been for many years the owner of a building, used for a foundry, facing upon North Portage street, in defendant village. This building was of brick, and was constructed by plaintiff in the year 1875. It had a frontage on North Portage street of about 60 feet. It being intended for foundry purposes, it was excavated to the depth of about 3 feet below the surface of the street, with the bottom of the windows nearly on a level with the street surface. It is alleged in the declaration that while this building was being erected the defendant village 'caused to be constructed along and a short distance west of the eastern boundary of said Portage street, including the part opposite the said brick building, a gutter wall, formed of stone, of considerable breadth, to wit, of the breadth of six feet, and having a descent to the north, towards McCoy's creek, near by; that the surface of the street sloped downward from the wall of said brick building to said gutter that said gutter was so constructed as to receive and properly carry away all water from the roof of said building and thereby all water from said building, when completed, was naturally carried into said gutter, and all water that by any means was likely to enter said gutter was also carried away.' It was also averred that the water was so continually carried off until the year 1893, when the defendant changed and raised the grade of that street about 3 feet along the whole of the side of the plaintiff's building, and caused the grade (some 12 feet in width) of the said side street to slope to and against the plaintiff's windows, thereby destroying the gutter which had theretofore carried off the water, so that, as now constructed, the waters are precipitated against said building, and into and through the windows and into the molding room of plaintiff's foundry. Some testimony was given tending to support the averments of the declaration. The court below instructed the jury that the declaration stated...