Stoneking v. Orleans Village

• Citation: 127 Vt. 161,243 A.2d 763
• Decision Date: 04 June 1968
• Docket Number: No. 996,996
• Parties: Ada Harris STONEKING v. ORLEANS VILLAGE and Allen Clark, Trustee.
• Court: Vermont Supreme Court

Page 763

243 A.2d 763

127 Vt. 161

Ada Harris STONEKING v. ORLEANS VILLAGE and Allen Clark, Trustee.

No. 996.

Supreme Court of Vermont.

June 4, 1968.

Lee E. Emerson, Barton, for plaintiff.

Downs & Rachlin, St. Johnsbury, for defendants.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

SHANGRAW, Justice.

Plaintiff seeks to recover damages of the defendants by reason of the claimed negligence of the defendants in the construction, operation and maintenance of the sewer system of defendant Orleans Village. Allen Clark, one of the trustees and executive officer in charge of sewers for over sixteen years, is made a party defendant in this action.

The alleged damage was occasioned by reason of sewage and water backing up into the basement and first floor of plaintiff's house located on the northwesterly side of East Street in Orleans Village. This occurred during April, 1965.

There was a cement sidewalk on plaintiff's side of the street. The street and adjacent sidewalk were hard surfaced. Plaintiff's lawn from her cellar wall to the edge of the sidewalk was thirty to forty feet in width. The sewage from her home ran from her cellar, by means of a four inch tile passing through the wall, across her lawn to the sidewalk, then under the sidewalk and roadway a distance of about twenty feet, where it emptied through a 'Y', into the municipality's main eight inch sewer line. The four inch line came into the main sewer on a 45 degree angle. This main line was about three to four feet southeasterly from the edge of the black top on East Street. Looking northeasterly, the main sewer line ran downhill until it emptied into the Willoughby River. This line accommodated both sewage and surface water.

There were twelve installations connected to this main line, ten residences, a high school and a church. One residence was above and southerly of plaintiff's home.

On plaintiff's lawn was a large tree located near the four inch line which ran from plaintiff's cellar, under the lawn, sidewalk, and roadway, to the connection with the eight-inch line. Southeasterly of the highway was a shoulder and bank on which elm trees had been cut and on which was growing bushes and underbrush.

Plaintiff's home was purchased in 1947. From time to time her four inch line became obstructed. Whenever called by the plaintiff, the village employees would come to the property and immediately relieve this condition by using a 'snake' which was inserted into the four inch line from plaintiff's cellar and pushed into the line in the direction of its connection with the main sewer line.

Because of the distance from the plaintiff's cellar to the eight inch line, and by reason of the location and construction of the Y connection where the two lines joined, it was impossible for the snake to enter the eight inch line. The snake could not have been used in this manner to unplug the main sewer line.

In 1954, the village employees, at the plaintiff's expense laid a new line from the foundation of the house to the sidewalk. The remainder of the four inch line leading from the sidewalk to the main sewer remained in the ground unchanged. The plaintiff continued to have occasional stoppage in her sewer line.

During the fifteen years while defendant, Allen Clark, had been village trustee and in charge of the sewer system, there had never been a blockage or stoppage in the main eight-inch East Street sewer line. There had been no blockage of this line since it was installed in 1920. The village had never dug up the line to make repairs or changes in it.

The plaintiff went to Florida for an extended period of time in the winter of 1964-1965. She was in Florida on April 15, 1965, when it was discovered that a substantial quantity of sewage material and water was in the basement and first floor of her house as a result of a back-up in the sewer system.

Village employees were called and it was discovered that the eight-inch line was obstructed below the Y connection where Mrs. Stoneking's line entered the main sewer. In order to determine the location of the obstruction, the eight-inch line was broken in three places. A three breaks were made downhill from the Stoneking connection with the main line, and it was only when the third break was made, that the location of the blockage was determined. This third break was the one furthest away from the Stoneking connection. This main line was plugged with roots and some gravel. Sewage and water coming down the eight inch line had backed up through the four inch line into the Stoneking residence. There was no check valve on plaintiff's sewer pipe to prevent a backup.

At this time there was no plugging or problem of any kind with the four inch Stoneking line, and there had been none since October 1963. All the trouble was located in the eight-inch main sewer line. The Stoneking line functioned properly after repairs were made to the main line.

Neither of the defendants had prior knowledge of any obstruction in the eight-inch line, and had never experienced any blockage of the East Street sewer line prior to April, 1965. Repairs to the main line were made as quickly as knowledge of the obstruction was brought to the attention of defendant Clark and the village authorities. About 75 feet of the eightinch sewer pipe was replaced.

Trial was by jury in the Orleans County Court resulting in a verdict for the defendants. At the conclusion of plaintiff's evidence the defendants moved for a directed verdict which was denied. This motion was renewed at the close of all the evidence and again denied. After verdict the plaintiff moved to set it aside and to render judgment for the plaintiff notwithstanding the verdict, and as an alternative, set aside the verdict and grant a new trial on the issue of damage only. This motion was denied and judgment entered on the verdict. Plaintiff has appealed.

The evidence clearly demonstrates that the clogging of the sewer of the municipality at some distance below the entrance of plaintiff's line therein caused the alleged damage, and not the plugging of plaintiff's line. Notwithstanding this fact considerable evidence was introduced by the plaintiff as to the location, condition, clogging, and repairs to plaintiff's line from time to time, as recited in the facts set forth in this opinion.

As bearing on notice to the defendants on the condition of the main eight-inch sewer line, plaintiff appears to claim that roots could have entered in this line and might have come up into the plaintiff's four inch line from time to time, and caused plaintiff's trouble on several occasions. This appears to be speculative as evidenced by the following testimony of defendant Clark on cross-examination of plaintiff's attorney.

'Q. The difficulty was caused by a back-up of some kind?

A. The difficulties prior to this April 15th date, the difficulties then were all in Mrs. Stoneking's four inch service line.

Q. Did you ream them out?

A. Yes.

Q. What did you take out for material?

A. You can't tell a lot of times. Sometimes they push through. It indicated roots.

Q. Any other material?

A. I can't recall that there was.

Q. Those roots could have come up from the eight inch line into her line, could they not?

A. Yes, possibly, or they could have come from this tree shown in the picture.'

The tree to which the witness referred to is on the property of the plaintiff and close to her...