Shann v. Rapid City

• Decision Date: 28 December 1948
• Docket Number: 8946
• Citation: 72 S.D. 418,35 N.W.2d 399
• Parties: GARNET SHANN, Respondent, v. CITY OF RAPID CITY, Appellant.
• Court: South Dakota Supreme Court

72 SD 418, 35 NW2d 399 (1948)

GARNET SHANN, Respondent v CITY OF RAPID CITY, Appellant South Dakota Supreme Court Appeal from Circuit Court, Pennington County, SD Hon. Turner M. Rudesill, Judge #8946—Reversed Bellamy & Eastman, Rapid City, SD Attorneys for Plaintiff and Respondent. John Potter, H. R. Hanley, Rapid City, SD Attorneys for Defendant and Appellant. Opinion Filed Dec 28, 1948

RUDOLPH, Judge.

Plaintiff brought this action against the city to recover damages due to water and sewage backing up in a sanitary sewer to which plaintiff’s property was connected. The facts disclose that plaintiff’s property was serviced by a six-inch sanitary sewer line constructed and maintained as a part of the municipal sewer system. This six-inch line originated approximately two blocks east of plaintiff’s property and ran in a westerly direction through the alley in the rear of the property and into a manhole within one-half a block from plaintiff’s home. There were about twenty connections on to this six-inch line and plaintiff’s was the lowest connection and the one nearest the manhole. The outlet from the manhole is an eight-inch line running north. Entering into this manhole in addition to the six-inch line to which plaintiff’s property is connected is a fourteen-inch line coming from the west with its opening directly opposite that of the six-inch line. This sewer line to the rear of plaintiff’s property was installed and has been in use since about 1906. On June 17, 1946, there was a very heavy rain in Rapid City, the weather records disclosing that 2.91 inches of rain fell from 7:30 A.M. June 17th to 7:30 A.M. June 18th. The records also disclose that in the 24 hour period preceding June 17th it had rained .19 of an inch. The flooding of plaintiff’s premises occurred on the night of June 17th and the morning of June 18th. The house on the property does not permit of a basement drain because the floor of the basement is lower than the sewer outlet. The house has drains to the sewer from the toilet bowl, lavatory and bath tub in the bathroom and from a sink in the kitchen. In the yard outside the house there is a tile pipe line connected to the sewer which extends to the ground surface, which on June 17, 1946, was plugged with cement. The flooding of plaintiff’s property occured mostly through the toilet bowl. It was apparent that water from the sewer system was backing up and overflowing through the toilet bowl into plaintiff’s house. Plaintiff called the city authorities who inspected the manhole into which this sewer line empties and found that the manhole and the whole sewer system in that vicinity were surcharged with flood waters due to the heavy rain. The manhole was filled to a point higher than the outlet of the toilet bowl and the water was thereby caused to overflow from the toilet bowl and into the plaintiff’s house. The flooding from the toilet bowl continued most of the night and until the cement plug in the yard drain was released where the flooding continued until sometime later in the morning. It appears from the record that the water flowing through the manhole was flowing freely and without obstruction but that there was more water flowing into the system than the size of the pipes would freely carry away. The trial court submitted the case to the jury and the jury returned a verdict in favor of the plaintiff. The city has appealed.

The trial court instructed the jury, in part, as follows:

“The city must so construct its sewers so that it will not collect and cast either sewage or surface waters originating elsewhere upon private property which would not otherwise have flowed or found its way thereon, as this is an invasion of private rights for which the city would be liable to the person injured thereby, and this regardless of whether or not the rainfall at the time was extraordinary or not.”

This instruction was a part of a series of instructions purporting to define to the jury the responsibilities and duties of the city in connection with its sewers. The duty defined by this instruction is not made subject to any other duty or responsibility as defined by the court, but is treated by the court in its instructions as an independent duty and responsibility, entirely separate and distinct from the other duties and responsibilities placed upon the city. By this instruction the court made the city absolutely liable if sewage or surface waters, which would not otherwise have found their way to plaintiff’s property, were cast thereon through this sanitary sewer. The liability as thus defined is not dependent upon any negligence of the city, but is absolute. It is upon the principle announced by the court in this instruction that...