Rix v. Town of Alamogordo.

• Decision Date: 17 March 1938
• Docket Number: No. 4323.,4323.
• Citation: 77 P.2d 765,42 N.M. 325
• Parties: RIX et al.v.Town of alamogordo.
• Court: New Mexico Supreme Court

42 N.M. 325

77 P.2d 765

RIX et al.

v.Town of alamogordo.

No. 4323.

Supreme Court of New Mexico.

March 17, 1938.

Appeal from District Court, Otero County; Numa C. Frenger, Judge.

Action by Carmen Rix and another against the Town of Alamogordo, N. M., to recover damages to a house and lot from flooding.Judgment for plaintiffs, and defendant appeals.

Affirmed.

A landowner cannot collect surface water into an artificial channel and precipitate it in unnatural quantities upon the land of his neighbor to the injury of the latter, notwithstanding that no more water is collected than would have naturally flowed upon the property in a diffused condition.

George A, Shipley, of Alamogordo, for appellant.

J. L. Lawson, of Alamogordo, for appellees.

BICKLEY, Justice.

Plaintiffs owned a house and lot situated in the lowlands of the town of Alamogordo.Some years ago canals were constructed, designed for the protection of the highways of the town and the property of the inhabitants thereof from the effects of surface waters precipitated in said town and vicinity.For several years past these canals have been under the control of the defendant town.About two years ago there was constructed under defendant's direction a new large canal for about two miles and one of the old canals was enlarged.The new and the enlarged old canal collected a large volume of surface water and discharged increased quantities of such water with increased velocity thereof during heavy rains or floods into an old canal.The defendant failed to enlarge this receiving canal and culvert therein to accommodate such increased flow of water and failed to provide means to carry off such increased amount of flood water.In 1935 heavy rains fell in and east of the town and a large amount of flood water gathered in said canals and flowed down into the old canal and culvert in such volume that they were unable to carry them off, both being of insufficient size, the culvert being poorly constructed so that it became clogged up with brush and debris.Because of these defects and inadequacies the flood water overflowed an adjacent street and down onto the plaintiffs' property, depositing dirt and debris on the lot and injuring the house thereon.Plaintiffs sued for $428.30, the estimated cost of rebuilding and repair and for the rental value of the premises during the period of restoration.The court gave judgment for the former amount but denied the rentals.

The court heard the testimony of witnesses, examined maps of the town offered by defendant, and early in the trial suggested the propriety of making a tour of inspection to locate the physical features so as to be better able to understand the evidence.This was agreed to by both parties, and the judge, with map in hand, accompanied by the attorneys, made the tour of inspection in order to assist him in becoming acquainted with the situation.The next day the trial was resumed in the courthouse and the court concluded “that the defendant by discharging the said larger volume of water with increased velocity into the said Second Street canal and culvert and overtaxing both, on the date complained of, was a contributing cause to the flooding and damaging plaintiffs' said property on the said date charged and defendant is liable to plaintiffs for said damages above fixed herein and plaintiffs are entitled to judgment for the same with costs herein.”

[1][2][3] Herein exists the foundation of legal liability of the defendant.

“The public has no more right to commit a trespass upon the land of an individual than has a private citizen, and if it does so it is liable to an action whenever the statutes permit the particular subdivision which commits the act to be sued.If a municipality gathers together a quantity of water and then fails to provide an outlet for it, so that it is cast upon the land of an abutting owner, it commits a direct trespass upon his property and cannot shield itself under the plea that it had discretion as to the adoption of plans for the drainage and is not liable for injuries caused by the exercise of its discretion.It has no discretion to commit a trespass, and, if the plans adopted by it necessarily result in so doing, it is just as liable as though it deliberately turned the water out of its course on to the abutting land.It has discretion as to whether it will drain or not, but, when it attempts to drain, it must provide for the water collected by it so that it will do no injury.”Farnham, Waters and Water Rights, vol. 2, p. 1136.

To the same effect seeCity of Houston v. Bryan, 2 Tex.Civ.App. 553, 22 S.W. 231, where the court said: “The city was not originally bound to furnish ditches or sewers for the purpose of draining plaintiff's property of the surface water which naturally passed over it, and it was not, therefore, bound to keep open the ditch which it had dug, so long as it did not by its negligence increase or divert the flow of such surface water, to plaintiff's injury; but when it collected water from other territory, and concentrated it in this ditch, it was bound to provide sufficient outlet for it, so that it would not be forced upon plaintiff's land in larger quantities than would have flowed over it without such act.The rule of law applicable in such cases is thus stated by Judge Dillon: ‘There will be liability [of a municipal corporation] if the direct effect of the work, particularly if it be a sewer or drain, is to collect an increased body of water, and to precipitate it on the adjoining private property, to its injury.’And further: ‘There is municipal liability where the property of private persons is flooded, either directly or by water being set back, when this is the result of the negligent execution of the plan adopted for the construction of gutters, drains, culverts, or sewers, or of the negligent failure to keep the same in repair and free from obstruction; and this, whether the lots are below the grade of the streets or not.’Dill.Mun. Corp. 1051.See, also, Gross v. City of Lampasas, 74 Tex. 195, 11 S.W. 1086.It follows from this that the city was liable upon the facts above stated.”

[4] In 85 Am.St.Rep. 707, is an extensive note on “The right of one land owner to accelerate or diminish the flow of water to or from the lands of another.”At page 726 of 85 Am.St.Rep. is discussed “Accelerating or increasing the flow of surface water.”At page 730 of 85 Am. St.Rep. 707, the note writer says: “The rule is universally recognized that a land owner has no right to collect surface water in an artificial channel, and discharge it in large quantities upon the land of a lower owner to his damage.Of this general proposition there is no doubt.”Citing cases.

The note writer continues: “This is both the rule of the common and the civil law: See, particularly, Barkley v. Wilcox, 86 N.Y. 140, 40 Am.Rep. 519.Under neither rule can surface water be accumulated in artificial channels and cast in undue and unnatural quantities upon the land of another: Illinois Cent. R. Co. v. Miller, 68 Miss. 760, 10 So. 61.”

In 27 R.C.L., Water, § 79, p. 1152, it is said: “*** It is the generally recognized rule both of the civil and the common law that a landowner cannot collect surface water into an artificial channel or volume, or precipitate it in greatly increased or unnatural quantities upon his neighbor, to the substantial injury of the latter.This is true although no more water is collected than would have naturally flowed upon the property in a diffused condition, for it is evident that, while a given piece of land may receive a large amount of surface water without injury thereto when it gently flows thereon from natural causes, yet when collected and discharged in considerable volume at a given point, it may become very destructive and injurious.”Citing Johnson v. White, 26 R. I. 207, 58 A. 658, 65 L.R.A. 250, and note.

[5] In 9 R.C.L., Drains & Sewers, § 78, p. 684, it is said: “It is well settled that as a general rule what would be illegal in the disposition of surface or other waters in the case of a private individual is likewise illegal when attempted by the public authorities.* D'

[6] In 26 R.I. 207, 58 A. 658, 659, 65 L.R.A. 250, is reported the case of Johnson v. White, accompanied by a note in the L.R.A. on “Rights and duties of municipal corporations with respect to surface water.”In the reported case the court held: “A municipal corporation is liable for injuries to property upon which it casts surface water in a body across intervening land by means of a drain or culvert in a highway, although no more water is collected than would have naturally flowed upon the property in a diffused condition.”

The court said: “The defendant's counsel contends that, as there has been no diversion of surface water, other than that which would naturally have found its way to and upon the plaintiff's land, had not said drain been built, the city cannot be held liable for any damages in the premises.He argues that, in view of this fact, the case does not fall within the rule laid down by this court in Inman v. Tripp.11 R.I. 520, 23 Am.Rep. 520. ***

“We think, however, that the principle involved in the Inman Case is applicable here.That principle, briefly stated, is this: That no one has a right to collect surface water in any considerable quantity upon his own premises, and then turn the same in a concentrated form upon the premises of his neighbor in such a manner as to cause him damage.Not that an owner of land may not so change the grade or surface thereof as to cause surface water to flow in a different direction from what it did before the natural contour thereof was changed, for this such owner doubtless may lawfully do.But he may not collect and concentrate such water, by means of drains or otherwise, and then turn it upon his neighbor's land in a volume.And the law doubtless is that a city has no greater power over its...