Peck v. City of Baraboo

• Decision Date: 05 October 1909
• Citation: 141 Wis. 48,122 N.W. 740
• Parties: PECK v. CITY OF BARABOO.
• Court: Wisconsin Supreme Court

141 Wis. 48

122 N.W. 740

PECK

v.CITY OF BARABOO.^d1

Supreme Court of Wisconsin.

Oct. 5, 1909.

Appeal from Circuit Court, Sauk County; E. Ray Stevens, Judge.

Action by William R. Peck against the City of Baraboo. Judgment for plaintiff, and defendant appeals. Reversed and cause remanded, with directions to enter judgment for defendant.John M. Kelley (F. R. Bentley, of counsel), for appellant.

Grotophorst, Evans & Thomas, for respondent.

TIMLIN, J.

In the circuit court the respondent presented a complaint charging the appellant with negligence in the adoption of a plan for a sewer or system of sewerage which was partly upon the street in front of respondent's property, also negligence in failing to adopt any plan for the same, also negligence in maintaining such sewer, and averred that, in consequence of such negligence, the respondent was damaged by a flow of surface water on his premises on May 22, 1907, which water the sewer so negligently constructed and maintained failed to carry off after a heavy rainfall. The jury, after hearing the evidence, arguments, and instructions, returned a special verdict as follows: “(1) Did the defendant use ordinary care in adopting the plan for the Barker street sewer? Ans. No. (2) Did the defendant use ordinary care in maintaining such sewer? Ans. No. (3) Was the rain of May 22, 1907, an extraordinary rain? Ans. No. (4) If you answer no to either question No. 1 or question No. 2, was such want of ordinary care the proximate cause of the injury sustained by plaintiff May 22, 1907? Ans. Yes. (5) Did the sewer in front of plaintiff's property on May 22, 1907, carry anything but surface water? Ans. Yes.” The respondent's damages were assessed by the jury at $370. Respondent moved for judgment in his favor upon this verdict, and the learned trial judge added a conclusion from the evidence, or a finding, that the land and streets adjacent to respondent's property had been so graded as to increase the flow of surface water down to and upon such property, and ordered judgment in favor of respondent.

It will be noticed that there is no averment in the pleading, and no finding by the jury, that the water was first collected by the city in the sewer and then escaped upon respondent's land, nor were the waters backed up upon the respondent's land after having been taken into the sewer by reason of defects in the construction or maintenance of the sewer, nor were respondent's premises connected with the sewer. The verdict, taken with the complaint, merely affirms that after a heavy, but not an extraordinary, fall of rain, the premises of the respondent were injured--i. e., damaged--from the action of surface water covering the same, which surface water the sewers in question failed to carry off as it fell in rain. (The fifth finding of the jury is too indefinite, and, assuming its verity, it establishes nothing material.) The city did not use ordinary care in adopting a plan for a designated sewer which we will assume to include the sewer in question adjoining respondent's premises. The city did not use ordinary care in maintaining this sewer. One of these two lapses was the proximate cause of the injury to respondent, which means the damage to his property; but which alleged breach of duty caused the damage is not found. No doubt, such a special verdict would be quite sufficient in form if the first question as answered, and the second question as answered, each established an invasion of respondent's legal rights, a breach of legal duty owing from the appellant to the respondent, or, in case one of the questions was answered in the affirmative and one in the negative, and that answered in the negative established such breach of duty. But in case both are answered in the negative, and either fails to set forth an actionable wrong, or neither of the first two questions of the verdict sets forth an actionable wrong, that is to say, a breach of legal duty due from appellant to respondent, it must be obvious that the jury have failed to find affirmatively that the damages suffered by the respondent were caused by any wrong or delict on the part of appellant. This would be a fatal defect. This form of special verdict is disapproved because it is at best only contingently good. That is, sufficient upon the contingency of the jury answering both the first and second questions in the negative that both are supported by evidence, and that each as answered constitutes a delict for which defendant is answerable to the plaintiff; or, in the contingency that one is answered in the affirmative and the other in the negative, and the latter finds the defendant guilty of an actionable wrong. We think the words of the special verdict should receive, with a view to support the verdict, great liberality of construction, and we therefore assume that want of ordinary care in adopting a plan means want of such care in selecting the plan and in examining and passing upon its sufficiency, and in failing to examine and pass upon its sufficiency, and in constructing a sewer or series of sewers without any definite plan, although the narrower meaning of adopting by merely voting upon a resolution might be urged.

Inquiring into the legal duty due from a city to a lot owner with reference to the construction of sewers, we find it noted (10 Am. & Eng. Ency. Law [2d Ed.] 239) that the decisions of the courts on this subject are by no means harmonious. The same comment is made at Id. p. 249, with reference to the liability of a municipal corporation for damages to private property caused by surface water. Whenever this condition of discord is found among the precedents, it is advisable to confine ourselves to the law of this state, so that the interstate discord may not become local and internecine. Carelessly and negligently constructing streets lying to the north and west of certain land by reason of which large quantities of surface water which would otherwise have passed off in other directions were conducted through the drains or gutters of such streets and cast in a body on his land, and at the same time raising the grade of a street to the south or southwest of his land so as to retain on the land the waters thus cast upon it, was held to confer no right of action in favor of the owner of the land and against the city doing these acts. Harp v. Baraboo, 101 Wis. 368, 77 N. W. 744. It will be observed that this case confirms the right of the city by construction and grading of streets to change the flow of surface water so as to bring down upon a lot owner from new watersheds surface water which would not, but for such street grading, have taken that course or reached his lot. In Clauson v. C. & N. W. Ry. Co., 106 Wis. 308, 82 N. W. 146, the railroad company by a ditch on its right of way parallel with its track carried surface water, which would otherwise never have reached the plaintiff's land, out of its natural and usual course and direction, and cast it upon the land of the plaintiff. This ditch was necessary to the use and enjoyment of the defendant's property, and the act was held damnum absque injuria. In Heth v. Fond du Lac, 63 Wis. 228, 23 N. W. 495, 53 Am. Rep. 279, the city in the construction and grading of...