Town of Princeton v. Gieske

• Decision Date: 24 January 1884
• Docket Number: 11,133
• Citation: 93 Ind. 102
• Parties: Town of Princeton v. Gieske
• Court: Indiana Supreme Court

93 Ind. 102

Town of Princeton v. Gieske

No. 11,133

Supreme Court of Indiana

January 24, 1884

From the Gibson Circuit Court.

The judgment is affirmed, with costs.

H. A Yeager and C. A. Buskirk, for appellant.

M. W Fields, for appellee.

OPINION

Howk C. J.

This was a suit by the appellee against the appellant, to recover damages for injuries to his lot and appurtenances within the corporate limits of the town of Princeton, occasioned, as alleged, by the appellant's negligent and unskilful improvement of its public streets. The cause was put at issue and tried by a jury, and a verdict was returned for the appellee, assessing his damages in the sum of $ 75. Over appellant's motions for a new trial and in arrest, the court rendered judgment against it for appellee on the verdict.

Appellee's complaint was in two paragraphs, to each of which the appellant demurred, upon the ground that it did not state facts sufficient to constitute a cause of action. Each of these demurrers was overruled by the court, and to each of these rulings the appellant excepted. These rulings are assigned as errors by the appellant, and they present for decision the first questions we are required to consider.

In the first paragraph of his complaint, the appellee alleged that he was and had been the owner of, and had resided upon, the west half of lot No. 26, in the original plan of the town of Princeton, excepting fifteen feet off of the north end of such lot; that before the doing of the injuries and grievances by the appellant, thereinafter complained of, there was a comfortable dwelling-house on such lot, and a good, dry cellar, wells, cisterns, out-houses, and appurtenances in good repair; that such lot was bounded on the south by Main-Cross street, in such town; that the ground from the east and northeast of such lot, for nearly a quarter of a mile, had a natural incline towards the southwest, over the appellee's lot; that all the water accumulating from rainfall, to the north and east of such premises, by natural flowage came down over such lot and collected into a drain along the north side of Main-Cross street, in front of such lot, and thence by means of a drain across such street to the south, and into another running stream of water, in the south part of such town, so that by natural flowage the waters accumulated upon such lot had free and rapid egress into another flowing stream; that, on or about May 1st, 1881, the appellant, having exclusive control over its streets, commenced a series of improvements in the vicinity of appellee's lot, and caused Main-Cross street to be graded and macadamized, and by means thereof the said drain, where it crossed the said street below the appellee's lot, and the drains along the north side thereof, were filled up to the depth of several feet and the flow of such water was wholly prevented; that the appellant wholly failed to provide any means of exit for the waters of such drains, and so negligently and unskilfully provided for the drainage of the waters of such drains that they were entirely choked up and their flow obstructed below the appellee's lot, so that, by reason of the wrongful filling up of such drains, and of the appellant's failure to provide other and sufficient drainage therefor, the waters accumulating on and above the appellee's lot had no sufficient outlet, but remained standing on the same until evaporated by the sun or otherwise; that by unskilful and careless grading of said street, the appellant had caused an increased volume of water to flow on appellee's lot, and provided no sufficient drainage therefor; that, by means of the premises, the appellee's cellar was filled with water and destroyed, and his dwelling-house was rendered unhealthful by reason of water flowing into and standing in the rooms thereof; that appellee's wells and cisterns were filled with surface-water, causing him great expense in having the same drawn out, and he incurred great expense in sewering such water from his cellar and dwelling-house; that, by reason of the flow of water into appellee's house and cellar his residence was rendered damp and unhealthful, causing sickness in his family and making him liable for large sums of money for doctors' bills and medicines; and that, by reason of the premises, and without his fault or negligence contributing thereto, the appellee had sustained damages in the sum of $ 1,000, for which he asked judgment.

In the second paragraph of his complaint, the appellee alleged substantially the same facts as were averred in the first paragraph, with, perhaps, this change or addition: It was alleged, in such second paragraph, that the appellant had constructed, within its territorial limits, a general system of public drainage; that for the purpose of draining his lot the appellee had constructed his private sewer so as to connect the same with the appellant's system of drainage; that, in the improvement of said Main-Cross street, the appellant had torn up and destroyed the sewers and culverts which had led the surface-water off from appellee's lot; and that, in the place of such sewers and culverts, the appellant had failed and neglected to provide other and sufficient drainage. Wherefore, etc.

We are of opinion that the court committed no error in overruling appellant's demurrers to each of these paragraphs of complaint. On behalf of the appellant, it is contended by its counsel, with much earnestness and ability, that it can not be held liable to the appellee in damages under the law for the injuries to his lot and premises occasioned by the improvement of Main-Cross street. Counsel say: "If, in grading or improving a street in an incorporated town, the surface-water which falls upon any lot, or flows thereon from other lots, is prevented from escaping or running off by such grade or improvement, no action will lie against the town on this account, although damage may be thus done to the lot and its owner." This can hardly be said to be a correct statement of the law applicable to the case made in either paragraph of appellee's complaint. Doubtless, it is true that under section 3367, R. S. 1881, in force since April 27th, 1869, the board of trustees of an incorporated town in this State has ...