Town of Central Covington v. Beiser

• Decision Date: 01 May 1906
• Citation: 92 S.W. 973,122 Ky. 715
• Parties: TOWN OF CENTRAL COVINGTON v. BEISER.
• Court: Kentucky Court of Appeals

92 S.W. 973

122 Ky. 715

TOWN OF CENTRAL COVINGTON v. BEISER.

Court of Appeals of Kentucky.

May 1, 1906

Appeal from Circuit Court, Kenton County.

"To be officially reported."

Action by Mary Beiser against the town of Central Covington. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Orlando P. Schmidt, for appellant.

B. F Graziana and James P. Tarvin, for appellee.

PAYNTER J.

In May 1895, Mrs. Vallandingham and her husband conveyed to appellee a lot in the Franklin subdivision in Central Covington, Ky fronting 23 feet on the west side of Center street and extending up a hillside 87 feet to an alley 10 feet wide. Jackson street runs east and west from Center street to and beyond the alley. Prior to 1892 there was a gully extending from a point west of the alley down the hillside to Center street and passing over a lot adjoining and south of the appellee's lot. The board of trustees of Central Covington passed an ordinance providing for the improvement of the alley from the south line of Jackson street southwardly to John Wolfe's north line by grading and paving and providing that a gutter be constructed in the middle of the alley. The work seems to have been completed in 1893. It will be observed that the improvement of the alley was accomplished two years before the appellee purchased the property. At the time the alley was constructed there was a drainpipe which had been placed in the gully by persons interested in the use of the alley, and had been covered up so as to enable persons to drive over the alley at that point. The mouth of the drainpipe was on private property two feet above the alley and the lower end was on private property two feet below the alley. The evidence conduces to show that the pipe was sufficient to carry off the water which accumulated at that point down the gully. When the city improved the alley the drainpipe was left where it was found. Shortly after the alley was constructed the drainpipe became stopped up, which prevented the flow of water through it, thus diverted the flow of the surface water across the alley, and onto the property of the appellee to her damage. The appellee instituted this action in 1902 by which she seeks to recover damages which she alleges she sustained by the overflow of her property by the water which accumulated near the mouth of the drainpipe, and by reason of it being stopped up.

The city seeks to avoid a recovery principally upon two grounds (1) Because the mouth and lower end of the drainpipe were on private property and the city was not authorized or bound to keep it open as it was not placed there by the city, therefore; (2) that the action was based upon the theory that the construction of the alley caused the injury, and that it was a permanent structure, and that five years had elapsed since its completion before the institution of the action, and that the statute of limitation bars a recovery thereon. If the city, before the drainpipe had been placed there, had improved the alley and, in doing so, it filled up the gully and thus diverted the flow of the water onto and over appellee's premises...