Sanborn v. Vill. of Enosburg Falls

• Decision Date: 10 February 1914
• Citation: 89 A. 746,87 Vt. 479
• Parties: SANBORN et al. v. VILLAGE OF ENOSBURG FALLS.
• Court: Vermont Supreme Court

89 A. 746

87 Vt. 479

SANBORN et al.

v. VILLAGE OF ENOSBURG FALLS.

Supreme Court of Vermont. Franklin.

Feb. 10, 1914.

Exceptions from Franklin County Court; Willard W. Miles, Judge.

Action by N. W. Sanborn and another against the Village of Enosburg Falls. Judgment for plaintiffs, and defendant excepts. Reversed, and judgment rendered for defendant.

Argued before POWERS, C. J., and MUNSON, WATSON, HASELTON, and TAYLOR, JJ.

McFeeters & McFeeters, of Enosburg Falls, for plaintiffs.

Elmer Johnson, of St. Albans, for defendant.

HASELTON, J. This is an action on the case for the recovery of damages done by surface water to the basement of a barn in the defendant village. The general issue was pleaded, trial by jury was had, a verdict for the plaintiffs was returned, and Judgment was rendered thereon. At the close of the evidence the defendant moved for a verdict in its favor. This motion was overruled pro forma, and the defendant excepted.

The plaintiffs complain of damages resulting from the doings and omissions of the village in respect to Church street and St. Albans street, two common roads in the village, turnpiked on the surface. The barn in question fronts on the south side of St. Albans street, and is built on a low, flat piece of land across which the surface water from an area of from six to ten acres naturally flows. About opposite the westerly cornet" of the barn there is an eight-inch tile sluice crossing St. Albans street. When it was put in, it does not appear. It has been there since 1898, and is maintained by the village. In that year the village put in a "barrel catch-basin" on the north side of St. Albans street about 70 feet west of the sluice. There is a tile running under the sidewalk into this barrel, and a six-inch tile from the barrel across St. Albans street, underground, which connects with the sewer of the village. The tile was put in to protect the sidewalk and to carry surface water into the sewer. The streets, the sluice, and the catch-basin were maintained by the village. In 1912 the tile, sluice, and catch-basin became clogged and frozen and were neglected, and, because of such clogging, freezing, and neglect, the surface waters overflowed the road, entered the basement of the barn, and caused the damage for which this action is brought. The village had notice of the condition of the drain and catch-basin, and took no action to remedy the trouble. The evidence, viewed in the light most favorable to the plaintiffs, tended to show that the defendant, by the grading of the streets and the piping of surface water, had somewhat, though slightly, increased the volume of surface water naturally cast upon the lot of land on which the barn stood, and that the grading of the streets mentioned had been so changed within a period of ten years that the lowest point of St. Albans street was no longer at the catch-basin, where it formerly was, but was closer to a corner of the barn in question. There was no evidence or claim of any change of grade in the vicinity in question to the extent of the three feet named in the statute. P. S. 3878; Fairbanks v. Rockingham, 75 Vt. 221, 54 Atl. 186.

The main question is whether or not, in its construction and maintenance of the sluice, catch-basin, and tile, the village was acting in a public and governmental capacity. If it was so acting, it is not liable for the negligence of the village officers in that regard, for in that case their acts and omissions are not deemed to be the acts and omissions of the village, but rather those of officers acting in behalf of the state in the performance of governmental functions. Carty's Adm'r v. Winooski, 78 Vt. 104, 62 Atl. 45, 2 L. R. A. (N. S.) 95, 6 Ann. Cas. 436; Stockwell v. Rutland, 75 Vt. 76, 53 Atl. 132; Aitken v. Wells River, 70 Vt. 308, 313, 40 Atl. 829, 41 L. R. A. 566, 67 Am. St. Rep. 672; Bates v. Village of Rutland, 62 Vt. 178, 20 Atl. 278, 9 L. R. A. 363, 22 Am. St. Rep. 95; Weller v. Burlington, 60 Vt. 28, 12 Atl. 215; Welsh v. West Rutland, 56 Vt. 228, 48 Am. Rep. 762; Parker v. Village of Rutland, 56 Vt. 224; State v. Burlington, 36 Vt. 521; Bacon v. Boston & Maine R. R., 83 Vt. 421, 439, 76 Atl. 128; City of Montpelier v. McMahon, 85 Vt. 275, 281, 81 Atl. 977.

The construction and maintenance of sewers is not considered a governmental function but a power conferred upon a municipal corporation for its own benefit and that of its citizens, although its exercise may conduce to the general good. Winn v. Rutland, 52 Vt. 481. The sewers are the sewers of the corporation; but all highways are public highways, and their maintenance and protection are governmental functions.

We think it is clear from the case that the sluice, catch-basin, and tile in question were not sewers and were no part of any sewer system, but were maintained for the protection of the highway very much as on some roads water bars are maintained for the same purpose. If the tile across St. Albans street is to be deemed a culvert, then the case is not affected, for the statutory liability of towns and other municipalities for maintaining insufficient culverts and bridges is for injuries to travelers only. Castle v. Town of Guildford, 86 Vt. 540, 86 Atl. 804; Herrick v. Town of Holland, 83 Vt. 502, 514, 77 Atl. 6; Cleveland v. Washington, 79 Vt. 498, 65 Atl. 584.

A municipality charged with the public duty of maintaining streets has no implied authority to dam up or otherwise obstruct natural water courses. The policy of the government is to conduct its highways over such natural water courses by bridges or culverts, and, in the absence of valid legislative power, the obstruction of a natural water course by a municipal corporation, to the injury of adjoining landowners, is something for the consequences of which the municipality is liable, as was decided in Haynes v. Burlington, 38 Vt. 350, a case cited by the plaintiffs.

It is as much the duty of a town to maintain a passage for a natural stream as it is to build highways and bridges, and, if a town undertakes to carry a highway across a natural stream by damming up the stream, it is not acting in the discharge of a public duty. Towns and villages cannot dam up streams to the injury of riparian owners by virtue of their duty to keep highways in repair any more than they can tear down houses. If property has to be so taken, it must be under the right of eminent domain.

In Livermore v. Town of Jamaica, 23 Vt 369, it was held that the constitutional provision as to compensation for the taking of private property for public use did not apply unless the owner was absolutely divested of all title in the property. The court relied upon no authorities, but thought the Constitution had theretofore received such a practical construction.

In Hatch v. Central R. Co., 25 Vt. 49, 65, it was...