Willson v. Boise City

• Decision Date: 05 January 1899
• Citation: 6 Idaho 391,55 P. 887
• Parties: WILSON v. BOISE CITY
• Court: Idaho Supreme Court

55 P. 887

6 Idaho 391

WILSON v. BOISE CITY

Supreme Court of Idaho

January 5, 1899

DIVERTING WATER OF A NATURAL STREAM-LIABILITY OF CITY.-The waters of a natural stream flowed through the city, crossing ten streets therein, and, during high waters, flooded the streets injuring them to the damage of the city. To avoid such injury, the city constructed an artificial canal, and diverted the waters of said stream therein; the canal was not of size sufficient to convey the waters of said stream, and overflowed and injured plaintiff's lands. Held, that the city was liable to plaintiff in damages, in being beneficially interested in the change of the course of a natural stream, and negligent in not constructing the canal of size sufficient to carry the waters of said stream at all times and in quantities that might be reasonably anticipated.

GRANT OF POWER-AUTHORITY.-A grant of power carries with it authority to do those things necessary to the exercise of the power granted.

ARTIFICIAL WATERWAY-MUST BE KEPT IN REPAIR BY PARTY CONSTRUCTING IT.-One who purchases land and improves the same on the line of an artificial waterway constructed by a municipal corporation may well rely upon such municipal corporation to perform the duty that it is under, of keeping such artificial waterway in repair and condition to carry all of the waters that may flow therein from usual and ordinary causes, and may recover damages received by the negligent flooding of his lands by waters from such artificial waterway.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Affirmed, with costs.

C. C Cavanah, for Appellant

The appellant contends that Boise City, a municipal corporation derives its powers and authority under and by virtue of a special charter, and that there is no provision therein granting to Boise City or the officers thereof authority, or making it the duty of said city, to construct and maintain this artificial channel. That the acts of the mayor and common council of Boise City in the construction and maintenance of said artificial channel were and are ultra vires, null and void. Taking the position which we are contending for, that the mayor and common council of Boise City were not authorized by law to construct and maintain this artificial channel, the rule is well settled that if an act from which an injury results be wholly beyond the powers conferred on a municipal corporation, the latter cannot be held responsible in damages for the doing of it. In support of this proposition we submit the following authorities: Collins v. Mayor etc., 69 Ga. 544; Cavanaugh v. Boston, 139 Mass. 426, 52 Am. Rep. 716, 1 N.E. 834; Field v. Des Moines, 39 Iowa 575, 18 Am. Rep. 46; Harvey v. Rochester, 35 Barb. 177; Smith v. Rochester, 76 N.Y. 506; Thayer v. Boston, 19 Pick. 511, 31 Am. Dec. 157; Dillon on Municipal Corporations, 4th ed., 1181, 1183. A ratification of the unauthorized and illegal acts of the officers or agents of a municipality cannot make the municipality liable. (Hodges v. Buffalo, 2 Denio, 110; Boam v. Utica, 2 Barb. 104; William v. Rockland, 52 Me. 118.) We maintain that it is fundamental that in order to say that a municipal corporation is liable in damages by reason of an act of its officers, the corporation or its officers must be engaged in the performance of a corporate duty devolved by law upon the corporation, and is not liable when engaged in the performance of a public service for the general welfare of the inhabitants of the community. (Kuehn v. Milwaukee, 92 Wis. 263, 65 N.W. 1030; Mayor etc. of Huntsville v. Ewing, 116 Ala. 576, 22 So. 984; Mayor of Albany v. Cuncliff, 2 N.Y. 165.) The universal rule laid down by the courts and text-writers is, that where a municipal corporation or its officers have used reasonable and ordinary care in the construction and maintenance of a public work, the corporation is not responsible for damages caused by freshets and storms. (Carr v. Northern Liberties, 35 Pa. St., 324, 78 Am. Dec. 342; Diamond Match Co. v. New Haven, 55 Conn. 525, 3 Am. St. Rep. 70, 13 A. 409; Mayor etc. of Huntsville v. Ewing, 116 Ala. 576, 22 So. 984; Rockwood v. Wilson, 11 Cush. 221; Steinmeyer v. St. Louis, 3 Mo.App. 256.)

Hawley & Puckett, for Respondents.

The city constructs a sewer system and extends its main drainage line one mile beyond the limits of the city and dumps the sewage upon the premises of another to his damage. Under the contention of the appellant herein the city would not be liable, as the acts of the mayor and common council would be ultra vires, the point of dumping being without the city limits. The authorities all hold that in a case like the above the city would be liable. (Chapman v. Rochester, 110 N.Y. 273, 6 Am. St. Rep. 366, 18 N.E. 88, 1 L. R. A. 296, and numerous cases therein cited.) It was the duty of the city when it constructed the new channel to have constructed it of sufficient size to carry off the waters that might reasonably be expected to flow down and into such channel. (Spangler v. San Francisco, 84 Cal. 12, 18 Am. St. Rep. 158, 23 P. 1091; Mayor v. Baley, 2 Denio, 440, 441; Powers v. Council Bluffs, 50 Iowa 197.) If the mayor and common council had the power to construct the new channel, then we contend that there can be no question but what the city is liable in this action. (Rose v. St. Charles, 49 Mo. 510; Imler v. Springfield, 55 Mo. 126, 17 Am. Rep. 645; Bams v. Hannibal, 71 Mo. 449; Mayor v. Thompson, 29 Ark. 569; Flagg v. Worcester, 13 Gray, 601; Gaued v. Booth, 66 N.Y. 62; Vanderweile v. Taylor, 65 N.Y. 341.) Good faith and honest exercise of judgment are no defense in an action for damages caused by inadequate artificial waterway. (Perry v. Worcester, 6 Gray, 544, 66 Am. Dec. 431, and note.)

Action by plaintiffs to recover damages caused by flooding their lands by waters from an artificial canal constructed by the defendant. Judgment for plaintiffs for $ 500 and costs of action. A motion for a new trial was denied. Defendant appeals from the order denying a new trial, and from the judgment. On the trial, the following stipulation of facts was made, which constitutes the evidence in the cause, to wit: "The above-named parties hereby agree upon the following statement of facts, and submit the same to the court for the determination of the points in controversy: The facts agreed upon, in addition to the facts admitted in the pleadings, are as follows: That Cottonwood creek is a stream tributary to Boise river, and rises in a range of mountains that extends along the northerly side of Boise City. That the natural channel of said stream enters said limits of Boise City, and runs southwesterly through the limits of Boise City, a distance of more than one mile. That the said natural channel of said stream through the limits of Boise City was before moving the same, varying feet in width and in depth. That, at times of high water in said stream, and of freshets, at the time said stream ran through said city limits in its natural channel, said waters ran at times outside and over said natural channel, and upon the land adjoining said natural channel, and the natural channel was at said times of high water insufficient to carry the waters of said stream. When the same ran through Boise City, it crossed ten streets. That, during the low-water season of each year, the authorities of Boise City could have, by making artificial channels along the streets, controlled the waters of said stream, so as not to have been an obstruction to said streets, or to have interfered with or prevented the proper cleaning or repairing thereof, but could not, during seasons of high water, have prevented such water obstructing the streets crossed by said stream, or of its interfering or preventing the proper cleaning and repair thereof. That, in high-water seasons, the fact of the water flowing out of the regular channel and over the adjacent lands would tend to cause sickness amongst the inhabitants of said Boise City. That, during the high-water seasons of said Cottonwood creek, which occurred only in the springs of 1892, 1894, and 1897, since the construction of said flume, the same being caused by freshets, storms, and warm winds melting the snow in the mountains at the head of said stream, said waters overflowed the walls, cut the banks of said flume out, and flowed upon the adjacent lands. That the mayor and common council of Boise City, for the purpose of preventing and allowing said stream from running in its natural channel through the limits of Boise City, did, in the year 1891, change the course of said stream from its natural course, and forced it to flow in an artificial channel, easterly from the city limits of Boise City, and outside of said city limits of the defendant. That, in said year 1891, the mayor and common council of Boise City did, by contract, cause to be constructed said artificial channel or flume herein, out of rock, cement, and lime, and extending from the point where said Cottonwood creek enters Boise valley, outside of said limits of the defendant, from the range of mountains along and without the city limits of Boise City, to the said Boise river. That said artificial waterway or flume runs between the westerly line of said real estate of plaintiffs and the easterly boundary line of said Boise City. That said artificial channel or flume was constructed in manner as follows: That the materials out of which said flume is made are pieces of rock, varying in width and thickness from six inches to four feet, and lined inside in places with lime and cement. That the size of said flume is five feet in height, three feet in width at the bottom, and the walls have a slant of forty-five degrees, making about eight feet distant across from top wall to...