Sandy v. City of St. Joseph

• Decision Date: 04 April 1910
• Citation: 126 S.W. 989,142 Mo.App. 330
• Parties: JOHN H. SANDY, Respondent, v. CITY OF ST. JOSEPH, Appellant
• Court: Kansas Court of Appeals

126 S.W. 989

142 Mo.App. 330

JOHN H. SANDY, Respondent, v. CITY OF ST. JOSEPH, Appellant

Court of Appeals of Missouri, Kansas City

April 4, 1910

Appeal from Buchanan Circuit Court.--Hon. L. J. Eastin, Judge.

AFFIRMED.

W. B Norris and O. E. Shultz for appellant.

Under the pleadings and evidence defendant's demurrer should have been sustained. Burke v. Railway, 29 Mo.App 370; Schneider v. Railway, 29 Mo.App. 68; Collier v. Railway, 48 Mo.App. 398; Johnson v Railroad, 111 Mo.App. 378; Gray v. Schrieber, 58 Mo.App 173.

Alcid Bowers for respondents.

A city cannot by street improvement collect a large body of surface water in one place and then by artificial means throw it in a body upon the landowner without being responsible in damages. Cannon v. City, 67 Mo.App. 467. A city that closes up catchbasins in the street, which catch-basins were necessary and were provided by it to carry off surface water that accumulates, without providing any safe way for such accumulated water to escape, and by reason thereof the water raises to such a height in the street as to flow over the curbing and on to private property to the damage of a landowner, is liable to such owner for such damage. Carson v. City, 53 Mo.App. 289; McInery v. City, 45 Mo.App. 296; Paddock v. Somes, 102 Mo. 238; McCormick v. Railroad, 70 Mo. 359; Rychlicki v. City, 98 Mo. 501; 2 Thompson on Negligence, 748.

OPINION

JOHNSON, J.

Plaintiff sued the city of St. Joseph, a city of the second class, to recover damages for negligence in the making of certain street improvements by which surface water was collected in a body and precipitated on plaintiff's property to his injury. The answer is a general denial. A jury was waived and the court, after hearing the evidence, rendered judgment for plaintiff in the sum of $ 170. Defendant appealed.

Point is made by defendant that the petition "does not state a cause of action for the reason that it does not charge that the city, by its act, accumulated surface water in a body and then cast it upon plaintiff." But we find the petition is not defective in this or any other essential particulars. The court made findings of fact as follows:

"1. The court finds that the plaintiffs at the commencement of this suit and at the date of the injury complained of were the owners of lot 4, in block 26, in St. Joseph Extension, an addition to the city of St. Joseph, Missouri; that said lot fronted west on Dewey avenue 50 feet; that Dewey avenue runs north and south and is a paved and improved street; that St Paul street runs east and west intersecting Dewey avenue at right angles 100 feet south of plaintiff's property.

"2. That in the summer of 1908, the city of St. Joseph caused a dirt fill to be made in St. Paul street east of Dewey avenue, which fill was a solid earth embankment and extended about 140 feet eastward from Dewey avenue, the fill being from 15 to 18 feet high at the lowest point, which fill crossed a natural ravine that commenced north of plaintiff's property and extended southwardly across St. Paul street for a long distance. That St. Paul street descended to the east from a point some distance west of Dewey avenue, to said avenue and to the said ravine prior to the time of the making of said fill.

"3. That the intersection of Dewey avenue and St. Paul street is at a low point in Dewey avenue, the street rising from the intersection in both directions north as well as south for several blocks. That St. Paul street rises as you go west from Dewey avenue and is an unpaved street; that prior to the fill made in St. Paul street the surface water flowed down Dewey avenue from the north and from the south to St. Paul street; and also flowed east down St. Paul street on Dewey avenue and in consequence thereof surface water was accumulated from the north, south and west at the intersection of said two streets, and the defendant city in order to take care...