The City of Fort Wayne v. Coombs

• Decision Date: 16 June 1886
• Docket Number: 9889
• Citation: 7 N.E. 743,107 Ind. 75
• Parties: The City of Fort Wayne v. Coombs et al
• Court: Indiana Supreme Court

7 N.E. 743

107 Ind. 75

The City of Fort Wayne v. Coombs et al

No. 9889

Supreme Court of Indiana

June 16, 1886

From the Allen Superior Court.

Judgment affirmed.

H Colerick, for appellant.

W. H Coombs, J. Morris and R. C. Bell, for appellee.

Elliott J. Iollars, J., did not take any part in the decision of this case.

OPINION

Elliott, J.

There are two paragraphs in the appellees' complaint, both seeking a recovery for injuries caused by a defective sewer. The difference in the paragraphs is that one alleges negligence in constructing the sewer, and the other alleges negligence in maintaining it. We shall not notice all of the objections to the complaint discussed by counsel, for we find upon an examination of the record that many of them are based upon a mistake as to its allegations.

We concur with counsel that where negligence is the issue the plaintiff must show that he was free from contributory fault, and that this is so whether the action is for injuries to person or property. The decision in Roll v. City of Indianapolis, 52 Ind. 547, on this point, is in conflict with the rule which has long prevailed in this court, and it can not be regarded as well decided. While it has not been in terms overruled upon this point, it has been by decisions which broadly and explicitly deny the doctrine which it asserts. Lyons v. Terre Haute, etc., R. R. Co., 101 Ind. 419; Wabash, etc., R. W. Co. v. Nice, 99 Ind. 152; Stevens v. Lafayette, etc., G. R. Co., 99 Ind. 392; Cincinnati, etc., R. W. Co. v. Hiltzhauer, 99 Ind. 486, see p. 490; Wabash, etc., R. W. Co. v. Johnson, 96 Ind. 40; Louisville, etc., R. W. Co. v. Lockridge, 93 Ind. 191, and cases cited, p. 192; Pennsylvania Co. v. Gallentine, 77 Ind. 322.

To the cases we have cited many might be added, but it is not thought necessary, as the principle which they assert is a familiar one, and is decisively against the doctrine of Roll v. City of Indianapolis, supra, for the sole foundation of such an action as this is the negligence of the municipal corporation, and the case is a pure type of actions for the redress of injuries resulting from negligence. The principle so long and so firmly established inexorably demands the conclusion that in actions against municipal corporations for injuries resulting from the negligent construction or maintenance of sewers, the plaintiff must show that he was free from contributory negligence.

We can not assent to counsel's assumption that the complaint does not aver that the plaintiffs were free from contributory fault. It is the rule in this State that a general allegation upon this subject is sufficient, and there is here such an allegation so framed as to cover all the acts, injuries and losses described in the complaint. We can find nothing in the complaint which is inconsistent with the general averment that there was no contributory negligence.

Where a municipal corporation constructs a sewer, it is bound to use ordinary care and skill, and it is not necessary that it should be averred that the corporate authorities had notice of defects caused by want of care and skill in doing the work. The doctrine that it must be shown that the corporation had notice of defects does not apply to defects in the work of constructing a sewer where the work is done by the corporation itself. Where a city undertakes to construct a sewer, and does it negligently, it is liable for injuries resulting from such negligence, without proof that it had notice of the defects. 2 Dillon Munic. Corp. (3d ed.), section 1024.

Where a sewer is constructed with care and skill, a municipal corporation is liable for injuries for negligently failing to keep it in repair, and where it is suffered to remain out of repair for such a length of time as that it was the duty of the corporate authorities to take notice of its condition, the law will charge the corporate officers with notice. In this case the complaint alleges that the sewer was suffered to remain out of repair for two years prior to the injury done to the plaintiffs' property, and there can be no doubt that this was sufficient to charge the corporation with notice. There are many cases holding that notice will be implied where a sewer or a street is suffered to remain in a defective condition for a much shorter period of time. City of Madison v. Baker, 103 Ind. 41, 2 N.E. 236; 2 Dillon Munic. Corp. (3d ed.), section 1025.

It is alleged in the fourth and fifth paragraphs of the appellant's answer that it had no authority to construct a sewer under the Wabash and Erie Canal without the permission of, and in the manner prescribed by, the officers of the canal company; that it was necessary to provide an outlet for the sewer to cross under the canal; that the appellant did secure permission to carry the sewer under the canal, and did construct it according to plans and specifications prepared by the canal company's engineer. To these answers the appellees replied that at the time of the construction of the sewer in Clinton street, that street was, and had been for more than twenty years, a public street, and that it crossed the canal at right angles; that the sewer was constructed on the line of the street to the canal; that the city, at the time of the construction of the sewer on Clinton street, had constructed other sewers, and in order to provide an outlet for these sewers it was necessary to cross the canal. The court overruled a demurrer to the reply.

The right of the public in the street was not lost by the occupancy of the land by the canal company; on the contrary, the right of the public to make use of the street in any lawful manner that did not injure the canal company or impair its rights remained in the public. City of Logansport v. Shirk, 88 Ind. 563; Shirk v. Board, etc., 106 Ind. 573, 5 N.E. 705.

We suppose it can not be doubted that the city might have built a bridge over the canal provided there was no interference with the company's rights, and if it could do this, surely it might construct a sewer beneath the channel of the canal. We can not yield to a doctrine that would lead to a denial of the right of the public to enjoy and use its highways, where such use and enjoyment would work no injury to the canal company. While we recognize the doctrine of the decisions following Water-Works Company v. Burkhart, 41 Ind. 364, we do not regard them as going to the extent of holding that the public lost its right to use and enjoy its highways in a lawful manner, although we do regard them as holding that neither the public nor a citizen can do any act that will interfere with the use of the canal property for canal purposes. We should, therefore, have no hesitation in upholding the reply on the ground assumed by appellee, that the public had not lost its rights if it affirmatively appeared that the highway existed before the canal was constructed; but, as this does not appear, a further discussion is necessary.

It is alleged that a highway called Clinton street crossed the canal, and that it had been in use for more than twenty years. This establishes the important fact that there was a lawfully existing highway, since user for twenty years vests an indefeasible right in the public. Strong v. Makeever, 102 Ind. 578, 1 N.E. 502. As the city had exclusive authority over the highway, it had an undoubted right to use it for any purpose for which a highway might lawfully be used, and it is well settled that the use of highways for sewerage purposes is a lawful one. Cummins v. City of Seymour, 79 Ind. 491, see p. 498 (41 Am. Rep. 618); 2 Dillon Munic. Corp., sections 656, 688; Angell Highways, section 216. The appellant, therefore, had authority to construct this sewer, and it can not escape liability to one who has suffered an injury from its negligence on the ground that it yielded its rights to the groundless demand of the canal company.

The authority to construct sewers is a general one, and resides in all municipal corporations unless expressly denied to them by the Legislature. Leeds v. City of Richmond, 102 Ind. 372, 1 N.E. 711. This authority is one which may be rightfully exercised upon any of the highways of the municipalities of the State, for they are invested with exclusive authority over all streets and highways within their limits. It was, therefore, within the power of the city of Fort Wayne to have built the sewer in its own way, provided, of course, no injury was done the canal company. The servitude in the streets of a city is much more extensive than in rural highways, and includes the right to dig sewers, lay pipes, and the like. As there was a lawfully existing highway, the city had all the rights which the urban servitude conferred, and among them was the right to construct and maintain the sewer described in the pleadings. Where a municipal corporation has it in its power, by the exercise of ordinary care and diligence, to secure its rights and protect property-owners from an injury that will probably result from the construction of a sewer, it will be liable if the failure to do its duty results from a wrongful surrender of its authority. City of Logansport v. Dick, 70 Ind. 65 (36 Am. R. 166).

Another question is discussed by counsel on both sides in their argument, on the ruling upon the demurrer to the reply, and as the question is elsewhere presented in the record rendering a decision necessary, we give it attention here, although what we have said establishes the sufficiency of the reply The question to which we here refer may be thus stated: Is a municipal corporation, which makes use of private property for the purpose of constructing a sewer, and in order to obtain the privilege of using the property submits to the demand of the owner to construct...