Stewart v. Rapid City

• Decision Date: 02 October 1925
• Docket Number: 5529
• Citation: 48 S.D. 554,205 N.W. 654
• Parties: ABBIE STEWART, Plaintiff and respondent, v. RAPID CITY, Defendant and appellant.
• Court: South Dakota Supreme Court

48 S.D. 554

205 N.W. 654

ABBIE STEWART, Plaintiff and respondent, v. RAPID CITY,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Pennington County, SD

Hon. James McNenny, Judge

#5529--Affirmed

George Williams, Rapid City, SD

Attorneys for Appellant.

Bangs & Wood, Rapid City, SD

Turner M. Rudesill, Rapid City, SD

Attorneys for Respondent.

Opinion filed October 2, 1925

CAMPBELL. J.

Plaintiff herein complained, in substance: That in 1912 she purchased lots 17 to 26, and 49 to 32, inclusive, in block 50 of the town site of defendant city, which lots were adjacent to, and on the north bank of a stream known as Rapid creek, which flows through said town site in a general westerly to easterly direction. That said lots had an average elevation of 6. to 10 feet above the bed of the stream, were well adapted for residence purposes and that plaintiff erected thereon a dwelling house and other improvements. That in the year 1907 defendant city established a sewage system discharging into Rapid creek, the outlet thereof being at the intersection of First and St. Louis streets, emptying into said stream on the south bank thereof, and and a short distance upstream from plaintiffs property, situated on the north bank thereof, and that the said city, for the purpose of protecting said sewer outlet from damage and injury from floods and freshets, caused to be extended into the channel and flood water channel of said stream a line or series of heavy piling, with planking nailed thereon, above and parallel to said sewer outlet, projecting out into said stream, constituting in effect a bulkhead or breakwater whereby the flow of the flood water of said stream was diverted toward the northerly bank of said stream. That in the shelter of said bulkhead, by reason of the existence thereof, and down stream therefrom, the former flood water channel of said stream became over grown with trees, brush, and weeds, with the result that in the month of May, 1920, the waters of the stream, swollen by melting snows and spring rains over the watershed drained thereby, were by said bulkhead or obstruction, and by the weeds, trees, and brush grown up in the shelter thereof, diverted from their former and natural course, and thrown over and against the property of the plaintiff, whereby the surface of plaintiff's land in considerable part was washed away to the depth of 6 to 10 feet, plaintiff's house undermined, and a new channel of said stream formed through plaintiff's land, necessitating the hasty removal of the improvements thereon to adjoining land, with considerable damage thereto and the washing away of some improvements, all to plaintiff's injury $7,000.

The defendant city, by its answer, denied that the natural flow of the waters of said stream was at any time interfered with by any artificial obstruction, admitted the construction of the sewer with its outlet into said stream at First and St. Louis streets, but did not admit the construction of any bulkhead or piling, and admitted that the swollen waters of the stream in May, 1920, washed away plaintiff's property substantially as she alleged. Defendant further pleaded that during 34 years prior to May, 1920, the waters of said stream continually flowed through the same channel, and by ordinary and natural erosion took away a portion of said block 50, and had already cut into said block a distance of 10 to 75 feet when plaintiff purchased the same in 1912, and plaintiff knew that said property was slowly but inevitably being destroyed by the waters of said stream by ordinary and natural causes, but nevertheless built her improvements dangerously close to said stream, with knowledge that they must in course of time become undermined by ordinary and natural erosion, and that plaintiff, knowing all said facts, did negligently and carelessly omit to do or perform any act, during all the time she owned said property, tending to protect or preserve the bank of said stream upon her property from said constant and natural impairment, although she could have so done at moderate expense; further that the spring freshet of May, 1920, was Occasioned by heavy, unusual, and extraordinary storms, and that the injury suffered by plaintiff was caused by her own negligence, and by said unusual and extraordinary freshet and flood, without any fault of said defendant, its officers or agents; further that the action could not be maintained, for that plaintiff had never, prior to the institution of the action, or at any other time, presented her said claim for damage to the governing body of defendant city as required by section 6338, Rev. Code 1919.

Upon these pleadings issue was joined, and the cause was tried. At the conclusion of all the testimony, defendant city moved for a directed verdict, which motion was denied, and the jury found for plaintiff, assessing her damages in the sum of $3,175.61, principal and interest, whereupon defendant city moved for judgment notwithstanding the verdict, which motion was denied, and judgment entered in favor of plaintiff upon the jury's verdict, from which judgment the city now appeals.

The contentions of appellant in support of which it has assigned error may be stated substantially as follows:

First, that a compliance with the provisions of section 6338, Rev. Code 1919, is a necessary condition precedent to the maintenance of the action.

Second, that the court erred in receiving and refusing to strike certain evidence going to the question of whether or not the city constructed or authorized the piling or bulk head.

Third, that the court erred in refusing to permit appellant to show what damage the freshet of 1920 caused generally through the city.

Fourth, that the evidence does not support the verdict in the following particulars: (a) That it fails to show that appellant constructed the bulkhead or piling; (b) that it fails to show said bulkhead or piling was constructed in a wrongful, negligent, or unskillful manner; (c) that it conclusively appears that the 1920 flood was not in any wise affected by the bulkhead or piling; (d) that it conclusively appears that respondent's damage was caused solely by the unusual and extraordinary freshet of 1920 and not by any negligence of appellant; (e) that respondent was contributorily negligent in erecting her improvements where she did and assumed the risk of so doing; and (f) that it clearly appears that respondent, at an expense of $375, or thereabouts, could have completely prevented the damage, but used no effort or diligence so to do.

Fifth, that the court erred in the giving and refusing of certain instructions.

Turning to the first contention of appellant, sections 6337 and 6338, Rev. Code 1919, which had their origin as sections and 2, respectively, of chapter 128, Laws 1909, read as follows:

"Sec. 6337. Claim Presented. Before any account, claim or demand against any municipal corporation for any property or services for which such corporation is liable shall be allowed, the person in whose favor such account, claim or demand shall be, either by himself or agent, shall reduce the same to writing and shall verify the same to the effect that such account, claim or demand is just and true; that the money therein charged was actually paid for the purposes therein stated; that the property therein charged for was actually delivered or used for the purposes therein stated and was of the value therein charged; that the services therein charged for were actually rendered and of the value as charged; or, in case such services were official, for which fees are prescribed by law, that the fees or amounts charged therefor are such as are allowed by law; and that no part of such account, claim or demand has been paid.

"Sec. 6338. No Suit Before Claim Presented. No suit shall be instituted against any municipal corporation to enforce the collection of a claim against it, unless such claim shall first have been presented to and acted upon by the governing body thereof in the manner prescribed by the preceding section; provided that in case the governing body of any municipal corporation, having had such claim before it at a regular meeting, shall fail or neglect to act upon such claim, it shall then he lawful for the owner of such claim, or his legal representatives, to bring suit in any competent court, as provided by law, to enforce the collection thereof; and provided, further, that this section shall not apply to cases where purely equitable relief is sought."

It is conceded that respondent did not at any time pre2sent to the governing body of appellant city any claim or demand in writing for payment of the damages here sought to be recovered. The contention of appellant on this point, however, is without merit. This court has previously, held that section 6338, Code 1919, has reference only to the accounts claims, or demands dealt with by section 6337, Code 1919, and that the same does not apply to a claim for damages in tort. Haley & Lang Co. v. City of Huron, 153 N.W. 891. We are convinced of the soundness of the rule laid clown in the Haley & Lang case. Furthermore, the decision in that case was handed down July 24, 1915, since which time the Legislature has re-enacted the statutory provisions without change in this particular in the Rev. Code of 1919, whereby we are entitled to indulge the presumption, however violent it may be as a matter of fact, that the Legislature at the time of re-enactment was familiar with the prior judicial interpretation, and intended that the law should be likewise construed subsequent to re-enactment. See Brink v. Dann, 144 N.W. 734.

Appellant's second contention is that the court erred in receiving in evidence and refusing to strike out the minutes of the city council of appellant city under date of October 1, 1907, which showed, among other things, that "the auditor was authorized to have the sewer outlet properly...