Thoman v. City of Covington

• Decision Date: 02 May 1901
• Citation: 62 S.W. 721
• Parties: THOMAN v. CITY OF COVINGTON. [1]
• Court: Kentucky Court of Appeals

62 S.W. 721

THOMAN v. CITY OF COVINGTON. ^[1]

Court of Appeals of Kentucky.

May 2, 1901

Appeal from circuit court, Kenton county.

"Not to be officially reported."

Action by Mary Thoman against the city of Covington to recover damages for injury to property. Judgment for defendant, and plaintiff appeals. Affirmed.

B. F Graziani and James P. Tarvin, for appellant.

F. J Hanlon, for appellee.

PAYNTER C.J.

The appellant owned a house and lot on the northeast corner of Baker and Lewis streets, in the city of Covington. Because the surface water flowed into her cellar and cistern, and over her premises, thus damaging them, she brings this action against the city. She avers that there were four sewers opening at the intersection of the streets named; that the openings were inadequate to carry off the surface water running thereto; that the officers, employés, and agents of the city knew of this fact; that, by reason of the inadequacy of the sewers to carry off the flow of surface water, it repeatedly overflowed the sidewalk on Lewis and Baker streets, flooding her cellar and grounds; that the surface water remained in the cellar, and formed a pond on her lot sometimes cutting off ingress and egress, thus causing serious damage to her property. It is not averred in the petition that the construction and maintenance of the sewers by the city changed the flow of the surface water so as to cause it to accumulate and flow into the cellar and on the premises of appellant. She seeks to recover because the sewers are inadequate to carry off the surface water which accumulates at the point in question, regardless of the fact as to whether the construction of the sewers caused it to accumulate there and flood her premises.

It is insisted on behalf of the appellee that if the streets were constructed according to a plan adopted by the city, although they produced the injury in question, still no cause of action would arise in favor of the appellant for the injury which she sustained by the overflow of the surface water on them; that the action could only be maintained in case that the sewers were defectively constructed, thus causing the injury complained of. In support of counsel's contention various sections of Dill. Mun. Corp. are cited. The rule announced by Dillon with reference to the liability of cities for injuries caused to property in the construction of streets and sewers no longer obtains in this state. In City of Henderson v. McClain (Ky.) 43 S.W. 700, 39 L. R. A. 349, the court had under consideration section 242 of the constitution, which provides that municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation...