Roberts Bros. v. City of Dover

• Decision Date: 05 May 1903
• Citation: 72 N.H. 147,55 A. 895
• Parties: ROBERTS BROS. v. CITY OF DOVER.
• Court: New Hampshire Supreme Court

55 A. 895

72 N.H. 147

ROBERTS BROS.

v. CITY OF DOVER.

Supreme Court of New Hampshire. Strafford.

May 5, 1903.

Transferred from Superior Court; Wallace, Judge.

Action by Roberts Bros, against the city of Dover for negligently causing sewage to back up and drain into plaintiffs' cellar. A verdict was rendered in favor of plaintiffs, and the case was transferred to the Supreme Court on exceptions. Exceptions overruled.

The plaintiffs' evidence tended to show that for a time beyond the memory of any living person the city of Dover had maintained a stone sewer on the lower end of Washington street from Locust street to the Cocheco river. The city also maintained another public sewer on Central avenue for more than 30 years, which united with the Washington street sewer at the intersection of Central avenue and Washington street. The Washington street sewer, from the river up to the intersection of Central avenue, would be represented by the lower part of the letter Y, and the part of the Washington street sewer above the intersection to Locust street and the Central avenue sewer would be represented by the upper parts of the letter Y. The mouth of the Washington street sewer was smaller than the stone sewer above, so that it could not discharge as much water as the sewer could carry. Within the last 20 years and more, as the city has expanded, new sewers draining new streets and territory have been connected with the two main sewers on Washington street and Central avenue, and in this way the amount of sewage and water flowing into these sewers has increased very largely. Within the last few years the Washington street sewer and that on Central avenue have several times failed to carry off the water and sewage flowing into them, either because the sewers were clogged or were insufficient in size. The two parts of these sewers represented by the upper part of the letter Y were on substantially the same level, and for many years prior to July 18, 1901, were in the same condition they were at that date. Both discharged sewage toward their junction, and thence down the Washington street sewer to the river. For many years prior to July 18, 1901, the part represented by the lower part of the letter Y was in the same condition it was on that date, except that a new outlet was built in 1896. On July 18, 1901, a tannery or belt factory discharged hair and pieces of hide into a sewer emptying into the Central avenue sewer above the plaintiffs' drain, and this state of affairs had continued for many years. One Brewster was allowed to testify for the plaintiffs that he was the mayor of the city in 1868-69; that the Central avenue sewer was constructed in 1869. and that to the best of his recollection the owners of property on that street entered the sewer at that time, and paid the city the fees established by ordinance. To this evidence the defendants excepted on the ground that the city records were the best evidence. Subject to exception, the plaintiffs were permitted to introduce evidence that on several occasions prior to July 18, 1901, when the conditions were the same as on that date, the Central avenue sewer was clogged with hair, pieces of hide, sand, and mud, and that it had to be frequently flushed out to keep it from being stopped up, as tending to show a faulty condition of the sewer. Subject to exception, the plaintiffs were permitted to introduce evidence that the basements of buildings connected with the sewer on Washington street, which were substantially on the same level as the plaintiffs' store, were frequently flooded in time of heavy rains prior to July 18, 1901, and on one occasion since, as tending to show the incapacity of the sewer on Central avenue and below the junction of Washington street and Central avenue to carry off the water discharged into it; and that on the occasions prior to that date notice of such floodings was given to the city, to show that it had notice of the defective condition of the sewer. The evidence did not show that the basement of the plaintiffs' store had ever before been flooded from the sewer. The defendant also excepted to evidence that on one occasion before the plaintiffs' damage the basement of the third building above the plaintiffs' store was flooded. At the close of the plaintiffs' evidence the defendant moved for a nonsuit. The motion was denied, and the defendant excepted. The defendant requested instructions based upon the theory that the city was not liable for damages arising from defects in the original plan of construction of the sewers. Subject to exception, the requests were denied, except so far as covered by the following part of the charge: "The city is required to exercise ordinary care to properly construct and to keep in proper repair such sewers as they see fit to build and maintain. If the city, by negligently constructing this sewer, or by negligently keeping it in repair, or by negligently suffering it to get stopped up, caused a positive invasion of the plaintiffs' private property by collecting and throwing upon it, to the plaintiffs' damage, water and sewage which would not otherwise have flowed or found its way there, and the plaintiffs were without fault, the city is liable. If the sewer, as originally constructed, was adequate and sufficient for the purpose for which it was then designed and used, and subsequently the city turned into it a much larger amount of water and sewage than was contemplated at the time of its construction, thereby overtaxing the sewer and causing water and sewage to flow back upon the premises of the plaintiffs, and they were without fault, the city would be liable after notice of such inadequacy of the sewer and neglect to remedy it."

William F. Nason and John S. H. Frink, for plaintiffs.

Kivel & Hughes, for defendant.

WALKER, J. For the purpose of showing when the plaintiffs' drain was connected with the sewer on Central avenue, and that it was rightfully so connected, Brewster was allowed to testify that, according to his recollection, the connection was made in 1869, and that the license fee therefor was paid. However defective his memory may have been, his testimony tended to prove these facts. Its lack of positiveness affected only its weight. It purported to be original evidence. It did not disclose other or better evidence for which it was a substitute. Hence it could not be excluded on the ground that the records in the city clerk's office might furnish information on the same subject. Hoitt v. Moulton, 21 N. H. 586, 590; Greeley v. Quimby, 22 N. H. 335. The witness did not attempt to state facts which were necessarily matters of record, or which his testimony disclosed were recorded. His testimony did not presuppose or assume the existence of other evidence upon the same subject of a higher degree of authenticity. He merely stated from his recollection certain facts whose existence did not depend upon written evidence thereof. Hall v. Ray, 18 N. H. 126; Putnam v. Goodall, 31 N. H. 419, 424; Pierce v. Richardson, 37 N. H. 306, 314. As it does not appear that the connection of the drain with the sewer in 1869 and the payment of the established fee were evidenced by written documents recorded in the city clerk's office or elsewhere, no error was committed in the admission of parol evidence to prove those facts. Wayland v. Ware, 104 Mass. 46, 51; 1 Gr. Ev. §§ 82-89. However that may be, there is a legal presumption that after so great a length of time payment of the license fee was properly made. Barker v. Jones, 62 N. H. 497, 13 Am. St. Rep. 413; Olcott v. Thompson, 59 N. H. 154, 47 Am. Rep. 184.

While it has been generally regarded as a necessary rule or principle of proof that evidence must be confined to the point in issue (1 Gr. Ev. § 51), in order to avoid the inconvenience of trying immaterial collateral issues, it is equally true that evidence having a legal tendency to establish a material point in controversy is admissible, unless it falls within some of the rules of exclusion which are based upon considerations of policy. The defendant contends that evidence that the sewer at other times had discharged its contents, or a part of it, into cellars on Washington...