Toebbe v. City of Covington
| Decision Date | 07 December 1911 |
| Citation | 145 Ky. 763 |
| Parties | J. H. Toebbe and Annie Toebbe v. City of Covington. |
| Court | Kentucky Court of Appeals |
Appeal from Kenton Circuit Court (C. C. L and E. Division).
F. J. HANLON, for appellant.
JOHN E. SHEPPARD for appellee.
J. H. Toebbe is the owner of property on 19th street in the city of Covington. In 1903 a sewer was constructed in 19th street. In 1906 a drain pipe was laid from Toebbe's property to this sewer, the sewer was tapped and the pipe attached. In November, 1910, Toebbe and his wife brought a suit against the city of Covington, in which they sought to recover damages alleged to have been sustained by reason of the city's permitting the said sewer to become closed or stopped up, whereby water was caused to back up into the cellar. The city denied liability, and upon this issue the case was tried out, with the result that a verdict was returned in favor of the city. The plaintiffs appeal.
From the pleadings and proof it appears that as early as in July, 1910, water began to accumulate in the plaintiffs' cellar, and continued to do so until in October following, when plaintiffs had the drain from their cellar taken up and entirely disconnected with the sewer. The hole which had been made in the sewer was closed and cemented and the space in between the sewer and the cellar wall filled and the hole in the cellar wall closed. The water, however, continued to come into the cellar as it had theretofore done.
It is the theory of the city that the drain pipe from plaintiffs' property to the sewer was not properly laid, that is, that it was laid too deep, and that this caused the water to back up from the sewer in the drain pipe; and after the drain pipe was disconnected it was the theory of the city that the accumulation of water in the cellar was due to seepage through the wall from an old wooden drain which ran near the cellar wall and had been theretofore used to drain the cellars of adjacent property owners. Plaintiffs' entire complaint was that the city negligently permitted its sewer to become closed or stopped up with mud and trash and suffered it to remain in this condition after it knew that their property was being damaged because thereof.
Several grounds are relied upon for reversal, but they may all be grouped under two general heads: First, that the court erred in restricting the plaintiffs in the introduction of their evidence to such as would tend to show temporary damage rather than permanent injury to the property; and second, that the court did not properly instruct the jury.
As to the first question, a sufficient answer is found in the statement of plaintiffs' cause of action embodied in the petition and its several amendments. There is no complaint made that the sewer was not properly constructed, or that the plan upon which it was constructed was imperfect. But the sole cause of complaint is that the city negligently suffered and permitted it to become stopped up. The remedy for this trouble, of course, would be to clean out the sewer, and, if this was the cause of plaintiffs' damage, as soon as the sewer was cleaned out the cause producing the damage would be removed. We are of opinion that the court correctly held that the damage to the property from this cause was not a permanent one, but a temporary one, and hence the court properly limited the evidence toward proving the claim set up by plaintiffs in their pleadings. If the sewer was properly constructed it is difficult to understand how the water could have escaped therefrom into plaintiffs' cellar after the connection was broken and the drain pipe taken out. Yet the evidence offered by plaintiffs undoubtedly showed that water did accumulate in the cellar after this connection was broken much after the same manner as it had previously done. On this showing the jury was warranted in finding that the water which was causing the plaintiffs annoyance did not come from the sewer at all, but from the old, unused drain, or source other than from the sewer. At all events it was a question for the jury to say whether or not this water did come from the sewer and as they found against plaintiffs their verdict must be upheld, unless the second ground for reversal relied upon by plaintiff, to-wit, that the court did not properly instruct the jury, is well taken.
The court gave the jury the following instructions:
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