Rikansrud v. City of Canton

• Decision Date: 13 July 1962
• Docket Number: No. 9950,9950
• Citation: 116 N.W.2d 234,79 S.D. 592
• Parties: Donald RIKANSRUD and Opal Rikansrud, Plaintiffs and Respondents, v. CITY OF CANTON, a municipal corporation, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 234

116 N.W.2d 234

79 S.D. 592

Donald RIKANSRUD and Opal Rikansrud, Plaintiffs and Respondents, v. CITY OF CANTON, a municipal corporation, Defendant and Appellant.

No. 9950.

Supreme Court of South Dakota.

July 13, 1962.

Woods, Fuller, Shultz & Smith, J. B. Shultz, Sioux Falls, for defendant and appellant.

Samuel W. Masten, Canton, for plaintiffs and respondents.

SMITH, Judge.

Water from a broken city main flooded and damaged the foundation, basement and sidewalks of plaintiffs' home. It is the theory of plaintiffs that this water gained entrance to their premises by following along through the backfilled trench of a city trunk sewer, and thence through the backfilled trench of plaintiffs' service sewer. They make no claim that the break in the water main resulted from negligence of the city. They allege the city did negligently construct, maintain and repair the described trunk sewer and thereby caused the water to enter their premises. The answer of the city includes a general denial and allegation that plaintiffs' damage was the result of their contributory negligence in the construction and maintenance of their service sewer. By motions made at the trial the city sought a directed verdict, and after verdict it moved for judgment n. o. v. The principal contention here is that the trial court erred in overruling these motions of the city.

We elect to develop the controlling facts by (1) describing the arrangement of the trunk sewers and water mains involved, (2) revealing some facts connected with events of August 1959 intervening the construction of the trunk sewer adjacent to plaintiffs' home and the time of the flooding, and (3) detailing the events surrounding and following the flooding. We serve our convenience by referring to trenches which have in fact been backfilled as trenches.

In the city of Canton, Kimball, Street, which extends north and south, intersects Walnut Street which runs east and west. Plaintiffs' recently constructed home is located on the southeast corner of that intersection. Its service sewer angles somewhat south of west from the southwest corner of the basement and connects with a trunk sewer which extends north and south along the center line of Kimball Street. At the first intersection to the south, Kimball Street crosses Elder Street which runs east and west. Another trunk sewer extends along the center line of Elder. The Kimball trunk and the Elder trunk enter a common manhole located at the center of the intersection of those streets. These trunk sewers are sunk to a depth of 10 feet at that point. The Kimball trunk north of Elder was constructed at two different times. It was first run about half way up the block to serve a house on the west side of the street in about 1956. In about 1958 it was continued on north and around the corner to the west on Walnut to serve another home then under construction. In the fall of 1958 plaintiffs commenced construction of their home and made their connection to the portion of the trunk last constructed.

Running parallel with the Elder sewer, and slightly to the north thereof, at a depth of 6 feet, a 6-inch water main extends along Elder. At a point somewhat east of the center of the Kimball-Elder intersection a 2-inch water main takes off from the Elder 6-inch main and runs south along Kimball. It was at the point where this 2-inch water main crosses above the Elder trunk sewer that the break occurred from which the flooding resulted. For some unexplained reason this 2-inch main broke apart as though it had been sawed.

Kimball does not carry a water main. Plaintiffs' water service connects with a main extending along Walnut and enters the northwest corner of the basement. Kimball does carry a natural gas main. This main is located near the west curb line. Neither its depth nor the time it was constructed is revealed by the record. A service line extends from this gas main across Kimball and enters the southwest corner of plaintiffs' basement. The depth of this line is not disclosed by the record. The location of the gas main in relation to the water and sewer trunks at the Kimball-Elder intersection is not evidenced.

Plaintiffs moved into their home in June 1959. Precipitation had been heavy during the season. On a Sunday morning in August following a heavy rain, as the plaintiff wife backed their automobile into Kimball Street from the garage at the southwest of their home, both wheels on one side broke through up to their axles into the trunk sewer trench. Thereafter two city employees arrived with a large truck and tractor. They pulled plaintiffs' motor vehicle out and proceeded to break the trench down somewhat south and north of plaintiffs' driveway. Thereupon, they filled the open trench with gravel which they then compacted by running the wheels of the heavy truck, loaded with gravel, along in the trench. Whenever it lodged they extricated it with the tractor. During this operation the plaintiff husband discovered a place in or near the center of the intersection of Walnut and Kimball where rain water draining down from the north and east was disappearing underground.

On Monday the city employees returned with the same equipment and a grader. They broke the trench all the way north to the intersection of Walnut and Kimball. Then they raised the grader blade to a perpendicular position and employed its point to break through the line of the trunk trench to a depth of about 20 inches searching for hollow areas. In this manner they explored through the heavier oil mat all the way to Elder. They found a hollow area about where plaintiffs' service sewer connects with the trunk, and another such area further south. They filled the trench thus opened with gravel and compacted as above described.

The record reveals that this same method of filling and compacting was employed by the city in the original construction of the two portions of the trunk sewer located between Elder and Walnut on Kimball.

After this August occurrence plaintiff husband suggested to the street commissioner that the trunk trench should be broken in all the way to Elder. The commissioner said he would take care of it. Except as hereinbefore described the trench was not broken down.

On a morning in March 1960 when the supervisor of the waterworks reported for work he noticed that although all three pumps were operating, they were making no gain on the supply registered on the gauge. Ordinarily, at that hour at least one pump could be shut down. He immediately initiated a search for some unusual use, an open hydrant, or for water on the surface indicating a break in a main. His search failed to reveal a cause for the water loss. In midafternoon plaintiffs discovered water entering the southwest corner of their basement. Within a short period pressure shook the whole house, slabs of concrete in the basement floor buckled and raised, and water spurted up about 12 inches along a 15-foot break therein. After the city was notified, it took some 2 1/2 hours for it to discover the mains involved and the controlling valves. It was the next day after working throughout the night before the break was uncovered. This work was rendered difficult because of the frozen ground. During that period four holes were sunk in and around the intersection at Kimball and Elder. The first hole was along the curb line in Kimball just outside the northeast corner of the intersection. They found mud in that hole, and when the valves were opened more water appeared. The next hole was in the northeast portion of the intersection itself. Here they found soup. They did not make a test here by opening valves. The next hole was in the southeast of the intersection. It was dry. The fourth hole uncovered the break in the 2-inch main. The plaintiff husband looked down into that hole. He testified an area had been hollowed below the broken water main down to and revealing the trunk sewer.

From the damage resulting to the foundation, sidewalks and basement floor, the inference is warranted that a considerable volume of water was forced in and all around plaintiffs' home. A large hole appeared under the garage and a sidewalk which extended along the south side thereof. This void extended out into the lawn along the service sewer for a short distance. Another hole appeared where the service sewer intersected the curb line of Kimball. The city filled both these holes with gravel.

A witness testified that plaintiffs' basement and foundation must be constructed anew to place the property in its original condition.

As we have indicated the plaintiffs predicate their right to recover on the negligence of the city. For damages resulting from flooding of private property the proximate cause of which is its negligence in the construction or operation of its sewer or water utilities, a municipal corporation is liable; it is not an insurer and liable for such damages in the absence of legal fault on its part. Dell Rapids Mercantile Co. v. City of Dell Rapids, 11 S.D. 116, 75 N.W. 898, 74 Am.St.Rep. 783; Midwest Oil Co. v. City of Aberdeen, 69 S.D. 343, 10 N.W.2d 701; Shann v. City of Rapid City, 72 S.D. 418, 35 N.W.2d 399; and 18 McQuillin, Municipal Corporations, 3d Ed. § 53.125, p. 495.

The city concedes that water from its broken main caused the damage here in question. Putting the alleged contributory negligence of the plaintiffs to one side for the moment, the question is whether an inference is warranted that negligence of the city in backfilling and compacting the trenches of their described trunk sewer lines, and in maintaining the density of the soil in those trenches was a legal cause of the damage to plaintiffs' property. By its motions and arguments the city takes the position not only that such an inference is not warranted, but an inference that the water was conveyed through those trenches is not supported by the evidence. It does not suggest it was privileged to...