Town of Norman v. Ince

• Decision Date: 25 August 1899
• Citation: 8 Okla. 412,1899 OK 106,58 P. 632
• Parties: TOWN OF NORMAN v. M. J. INCE
• Court: Oklahoma Supreme Court

1899 OK 106

58 P. 632

8 Okla. 412

TOWN OF NORMAN v. M. J. INCE

Supreme Court of Oklahoma

Decided: August 25, 1899

SYLLABUS

¶0 1. MUNICIPAL CORPORATIONS--Damages--Liability. A municipal corporation is not impliedly liable for the incidental injuries to property, resuting from the exercise of its legislative powers, by reason of the erection and maintenance of public improvements, where the premises are in no manner invaded; yet such a corporation is responsible for the direct injuries to private property, caused by a corporate act in the nature of a trespass or nuisance.

2. SAME--Injuries to Private Property. A municipal corporation, in the exercise of its corporate powers to construct and maintain public works, has no power to collect water by artificial means, and discharge it, or permit it to discharge or overflow, upon the premises or an adjacent freeholder, so as to interfere with his possession. Hence, for a municipal corporation to collect water by artificial means, such as a water standpipe, and conduct it in such a careless and negligent manner as to allow it to overflow and flood the premises of an adjacent property owner is such an invasion of private property as to constitute an appropriation of it to public use, and the principle exempting municipal corporations from liability arising from damages occasioned by the exercise of their discretionary powers in the construction and maintenance of public works does not apply, and the corporation is liable for damages resulting therefrom.

3. DAMAGES--Measures of. In an action to recover for an injury to property, arising from the carelessness and negligence of the corporate authorities in permitting a water standpipe to continuously overflow upon the premises of an adjacent property owner, the measure of damages is the loss actually sustained, and in case of a permanent injury to the property the true measure of damages is the difference between the value of the property immediately prior to the location and construction of such improvement and its diminished value immediately thereafter.

Error from the Probate Court of Cleveland County; before J. B. Wilkins, Probate Judge.

Action by M. J. Ince against the town of Norman. There was a judgment for plaintiff, and defendant brings error. Affirmed.

B. F. Wolf and E. E. Hennessy, for plaintiff in error.

Williams & Newell, for defendant in error.

HAINER, J.:

¶1 This was an action brought in the probate court of Cleveland county by M. J. Ince, defendant in error, against the town of Norman, plaintiff in error, to recover damages arising by reason of the construction and operation of a water standpipe adjacent to plaintiff's premises. The plaintiff's petition alleged that she is the owner of lots 3 and 4, in block 54, in the town of Norman; that on the 5th day of July, 1894, the defendant corporation erected a water standpipe of the heighth of 100 feet and of the diameter of 12 feet in close proximity to plaintiff's premises; that said standpipe was so carelessly and negligently constructed by the defendant that from the day of its erection to the time of the bringing of this action it has overflowed and discharged water on the plaintiff's premises; that by reason of said overflow and discharge of said water the plaintiff's premises have become worthless, and, as a consequence thereof, the plaintiff has sustained damages in the sum of $ 150. The demurrer to the petition having been overruled, the defendant answered by pleading a general denial. The case was tried by a jury, and a verdict was returned in favor of the plaintiff, assessing the amount of her damages at $ 50. The defendant moved for judgment on the special findings of fact, for the reason that they were inconsistent with the general verdict, which was overruled by the court, and judgment was thereupon entered in favor of the plaintiff for $ 50, in accordance with the verdict of the jury. From this judgment the defendant brings the case here on appeal.

¶2 The questions raised by the plaintiff in error may be considered under two general assignments of error: (1) That the petition does not state facts sufficient to constitute a cause of action; and (2) that the court committed error in overruling defendant's motion for judgment on the special findings of fact. The plaintiff in error contends that, before the defendant in error can recover damages, it is incumbent on her to show that the standpipe was so carelessly and negligently constructed that it constituted a nuisance, or that it was so carelessly and negligently constructed that it is unsafe, and renders the occupancy of the premises dangerous. In support of this proposition, counsel for plaintiff in error says: "A municipal corporation, acting under the authority of its charter or general statute, cannot be subjected to a liability for damages arising from the exercise by it of the authority conferred, so long as the authority is properly exercised, and not exceeded, unless the statute or fundamental law expressly gives a right to such damages." (15 Am. & Eng. Enc. Law, p. 1153, and cases cited.)

¶3 We do not think the rule laid down in support of the contention of the plaintiff in error is applicable to the case under consideration. It is true that it is a well-established rule that a municipal corporation is not impliedly liable for the incidental injuries to property, resulting from the exercise of its legislative powers, by reason of the erection and maintenance of public improvements, where the premises are in no manner invaded; yet such a corporation is responsible for the direct injuries to private property caused by a corporate act in the nature of a trespass or nuisance, and therefore a municipal corporation has been held liable for an injury to the premises of the plaintiff by flooding it with water, not only where such injury is caused by neglect to keep a sewer in repair, but as well where it is the negligent or necessary result of the constructing of a sewer. (2 Dill. Mun. Corp., sec. 1045, and numerous authorities cited in notes.)

¶4 In Nevins v. City of Peoria, 41 Ill. 502, it is held that a city has no right to take private property without compensation, and no right to use its...