Young v. Kansas City

• Decision Date: 06 June 1887
• Parties: ELIZABETH J. YOUNG AND DAVID YOUNG, Respondents, v. THE CITY OF KANSAS, Appellant.
• Court: Kansas Court of Appeals

27 Mo.App. 101

ELIZABETH J. YOUNG AND DAVID YOUNG, Respondents, v. THE CITY OF KANSAS, Appellant.

Court of Appeals of Missouri, Kansas City.

June 6, 1887

APPEAL from Jackson Circuit Court, HON. JAMES H. SLOVER, Judge.

Reversed and remanded.

Statement of case by the court.

This was an action to recover damages caused to the property of the female plaintiff by the defendant obstructing the free flow of the water of a natural stream. The obstruction consisted of a culvert, built in the stream where one of the defendant's streets crossed the same, insufficient in size to carry off the water of the stream.

The answer was a general denial first, and then it set up the following defence:

" For its second defence herein, the defendant states that, at the times the plaintiffs allege they were damaged there were unusual and extraordinary rainfalls and storms and such as were unprecedented; and that, by reason of such rainfalls and storms, the said O. K. creek overflowed; and if the plaintiffs were damaged, it was by reason of said rains and not by reason of any carelessness or negligence of defendant."

The case was tried by the court, without the intervention of a jury. The court gave, for the plaintiff, the following declarations of law:

" 1. The court declares the law to be that if the rains that accumulated in the bed of the south branch of O. K creek, at the times charged in the petition, were such as might reasonably be expected to occur in this locality, then it was the duty of the defendant, if it undertook to provide a culvert for the passage of the water in said creek, to construct it large enough to allow of the free passage of the waters therein during such rains, provided this could have been done by the exercise of ordinary care and prudence."

" 2. If the common council, by ordinance, left the size, dimensions, and manner of constructing the culvert to the judgment and discretion of the city engineer, then it became the duty of such engineer to use ordinary care and skill, both in the plan and dimensions and manner of construction of said culvert; and if it appear, from the evidence, that said culverts were too narrow, and not high enough, and that such defects therein were due to a want of ordinary care and prudence on the part of said engineer, then such negligence and want of care must be imputed to the defendant, the City of Kansas, and said city be held responsible therefor."

" 3. In erecting a culvert across O. K, creek, or the south branch thereof, it was the duty of the City of Kansas, in order to protect property along said creek from overflow, to exercise ordinary care and prudence, both as to the dimensions and capacity of the culvert and its manner of construction, so as to admit the free and unobstructed passage of the water of said creek, not only during the dry season, but also when the water thereof should be swelled by the usual freshets and heavy rainfalls; and if it appears, from the evidence, that in the construction of said culvert the defendant did not exercise such care and prudence, but negligently constructed the same, so as to divert the water from its channel and flood the property of plaintiff, as stated in his petition, then the verdict must be for the plaintiff, provided said stream was a natural water-course, as defined in these instructions."

" 4. Although it should appear, from the evidence, that the stream was swelled by heavy rains, and the overflow took place at that time, yet if it further appears that such rains were and had been frequent, and might have reasonably been expected to occur in any year, then it was the duty of defendant, in making a culvert, to make allowance for such heavy rains, in order to build a culvert with a water-way reasonably sufficient to carry off the water accumulating at such times and under such circumstances; and to this end it was the duty of defendant to exercise that degree of care and diligence which a person of ordinary care and prudence would have used under similar circumstances. And if it appears, from the evidence, that defendant constructed the culvert complained of, in such manner and of such dimensions as to be too small to carry off the water that usually collected during such freshets, and instead of allowing its passage it obstructed it and diverted its course, and the insufficiency of such culvert was due to the negligence and want of ordinary care and prudence of defendant, and plaintiff was injured thereby, as stated in his petition, then the verdict must be for plaintiff."

The court refused to give for the defendant, among others, the following declarations of law:

" 8. If the court believes, from the evidence, that the design, plan, specifications, and dimensions of the culverts in question, were selected and determined upon by the city engineer of the City of Kansas, and were not approved or adopted by the common council of said city, then the court must find for the defendant."

" 12. If the damage complained of in plaintiffs petition was caused by the filling in of plaintiffs' lot, with others, and the changing of the course of the bed of O. K. creek, then the judgment must be for the defendant."

W. A. ALDERSON, for the appellant.

I. The charter of Kansas City grants to the common council the power " to establish, erect, and keep in repair, bridges, culverts, and sewers, and to regulate the use of the same." Art. 3, sect. 1, sub-div. 8. By section one, article eight of the charter, it is provided that " the common council shall have power to cause to be graded, constructed, reconstructed, paved, or otherwise improved, and repaved, all streets * * * and public highways, or parts thereof, within the city, at such time, and to such extent, and of such dimensions, and with such materials, and in such manner, and under such regulations, as shall be provided by ordinance." The culverts complained of are a part of the street which they support, and their construction constituted an improvement of the street. City of Eudora v. Miller, 2 P. 685. The ordinance in evidence, which provided for the construction of the culverts, has for its first section the following: " Stone culverts of such dimensions as the engineer shall find necessary shall be constructed on Eighteenth street at Harrison street and Forest avenue." What more flagrant violation of the charter provision, quoted supra, could be presented? This delegation of its power by the common council to the city engineer relieves the City of Kansas from all liability to respond to the charges of the respondents. Thompson v. Boonville, 61 Mo. 282; Stewart v. Clinton, 79 Mo. 603, 609, et seq.; St. Louis v. Clemens, 43 Mo. 395, 403; Ruggles v. Collier, 43 Mo. 353, 365, 366; Matthews v. Alexandria, 68 Mo. 115, 119; Smith v. Rochester, 76 N.Y. 506; Rowland v. Gallatin, 75 Mo. 134; Semon v. Newton, 134 Mass. 476; Chilson v. Wilson, 38 Mich. 267; Judge v. Meriden, 38 Conn. 90; Marquette v. Cleary, 37 Mich. 296; Anthony v. Adams, 1 Metc. 284; Cooley's Const. Lim. [5 Ed.] 249, and cas. cit.; 1 Dill. Mun. Corp. [3 Ed.] sect. 96, and cas. cit.; Lord v. Oconto, 47 Wis. 386; Lanenstein v. Fond du Lac, 28 Wis. 336; Birdsall v. Clark, 73 N.Y. 73; Cummins v. Seymour, 79 Ind. 491; Ball v. Woodbine, 61 Ia. 83; Cumberland v. Willison, 50 Md. 138; Thompson v. Schermerhorn, 6 N.Y. 92.

II. The issue of ratification is not pleaded, and hence should not be now considered in the case at bar. But if by any reasoning it can now be said that the act of the city engineer, in determining upon the dimensions of the culverts was or became the act of the common council of the City of Kansas, then it was a legislative or judicial act of that body. In determining upon the plans and specifications of the culverts the common council could create no liability for the appellant because of a mistake which made them defective. This is a proposition so elementary as to call for no authority in its support; but from numerous cases supporting it we submit the following: Hinds v. City of Marshall, 22 Mo.App. 203; Fair v. Philadelphia, 88 Pa.St. 309; Toolan v. Lansing, 38 Mich. 315; Foster v. St. Louis, 71 Mo. 157; Thurston v. St. Joseph, 51 Mo. 510; Stewart v. Clinton, 79 Mo. 603, 612; Child v. Boston, 4 Allen 41; Darling v. Bangor, 68 Me. 112; Lansing v. Toolan, 37 Mich. 152; Merrifield v. Worcester, 110 Mass. 216; Detroit v. Beckman, 34 Mich. 125; Van Pelt v. Davenport, 42 Ia. 308; Roll v. Indianapolis, 52 Ind. 547; Dean v. Brooklyn, 32 N.Y. 489, 499.

III. The sole charge against the culverts that merits consideration is that they were insufficient to receive the volume of water which could flow in O. K. creek. That they were substantially and properly constructed appears conclusively from the respondents' own evidence. The sequence is that the city engineer simply erred in a matter of judgment. His act in determining the dimensions of the culverts was judicial and can create no liability on the appellant to answer for any damages resulting therefrom. Judge v. Meriden, 38 Conn. 90; Van Pelt v. Davenport, 42 Iowa 308; Dean v. Brooklyn, 32 N.Y. 489; Detroit v. Beckman, 34 Mich. 125; Darling v. Bangor, 68 Me. 112; Child v. Boston, 4 Allen [Mass.] 41.

IV. The distinction is universally recognized, between acts done in behalf of the corporation in its private capacity, such acts as redound to its own emolument, and those acts performed for the municipality in its public capacity. The latter acts cannot place on the corporation any liability for damages caused thereby. Murtaugh v. St. Louis, 44 Mo. 479; Thompson on Negligence, 737.

V. The common-law principles affecting questions pertaining to the liability created by interfering with the water-course of a living stream, cannot avail respondents: " To establish alter, and...