196 Pa. 302 | Pa. | 1900
Opinion by
The plaintiff below brought suit to recover from the city of Philadelphia for losses sustained by the flooding of lands which he occupied in the lower portion of the city, commonly known as the “ Neck.” His property was part of si large tract, bounded on the east and south by the Delaware river, and on the west by the Schuylkill, and was from four to six feet helow high tide level. Artificial banks had, for. many years, protected this and other lands in the locality from the overflowing, water of the rivers, and sluices and canals formed parts of a system for such protection and for draining the low-lying ground. On. August 1, 1897, one of these sluices blew out, and the land of the plaintiff was overflowed. His crops and other property were destroyed, and, alleging that the loss sustained was due to the city’s negligence, he brought this suit against it. The cause was not tried before a jury, but submitted to a referee under the act of May 14, 1874, whose findings of fact were as follows:
“ 1. That for many years, the lower portion of the city of Philadelphia, comprising that section now embraced within the boundaries of the first, twenty-sixth, thirty-sixth and thirty-ninth wards, and bounded on the east and south by the Delaware' river, and on the west by the Schuylkill river, had been drained.*306 into and protected from overflow from the said rivers, by a system of sluices and canals.
“ 2. That the particular locality in which was situated the farm of the plaintiff was protected from any overflow from the Delaware river by a sluice maintained by the city of Philadelphia, defendant, which for at least eighteen years had worked successfully.
“ 3. That, for public municipal purposes, the city of Philadelphia, the defendant, undertook to, and did, tear out, remove and destroy said sluice, and undertook to, and did, build the sluice whose improper design and construction are complained of, in its place.
“ 4. That, on December 31, 1895, an ordinance was passed by the select and common councils of said city of Philadelphia, defendant, and approved by the mayor thereof, by which an appropriation of $12,328 was made to the bureau of highways of the department of public works, to be expended in the improvement of waterways.
“ 5. That, on September 21, 1896, in pursuance of said ordinance, the city of Philadelphia, defendant, entered into a contract, a copy of which is attached to this report, with one John L. Grim, whereby said Grim was to furnish all the materials and perform all the labor required for improving the waterways in the first ward of the city of Philadelphia, in accordance with certain plans and specifications thereto attached.
“ 6. That said plans and specifications were prepared by the bureau of surveys of the department of public works of the said defendant, and that by both contract and specifications, a copy of which is attached to this report, the supervision and control of every part of said work, both as to the mode of construction and the quality of materials to be used were reserved, from its beginning to its completion, to the city of Philadelphia, the defendant, and that its agents and representatives (its inspectors of the bureau of highways) of the department of public works,, did actually undertake its supervision and control.
“ 7. That, in accordance with said authority from said defendant, the said contractor began the work of tearing out the sluice which had existed successfully for at least eighteen years, and the building of a new and differently constructed sluice.
*307 “ 8. That said work was commenced by him early in October, 1896, and was completed by him early in the year 1897, when it was accepted from him by the city, and the last payment was made to him on June 30, 1897.
“ 9. That the designs and plans furnished by the city of Philadelphia, and upon which the said sluice was constructed, were defective, in the following particulars, among others: (a) In providing a too rigid foundation for the sluice box to rest upon, whereby the mud was prevented from making its natural settlement without leaving dangerous spaces under the box. (5) In providing an overhanging ledge at the top of the foundation, thereby preventing the mud from settling in one mass, and thus leaving spaces under the ledge, (c) In want of uniformity in the length of the pilings, rendering the foundations uneven as to settlement.
“10. That the said sluice was defectively constructed. (a) That the wooden portion of the foundation was defective, the sheet pilings thereof being improperly and negligently driven in such manner as to leave cracks and holes and splintered edges and tops. (b) The mud underneath the sluice box and upon which it should rest, and into which it should settle was of inferior, thin and watery character, and was not puddled or rammed, or made of the texture and consistency required by the specifications.
“ 11. That all of these various defects, both as to the plans and manner of construction, and the defective material and improper use thereof in the building of the sluice had been repeatedly brought to the notice of the official representatives of the defendant for several months before the sluice blew out.
“ 12. That the sluice, so improperly planned and constructed by the city of Philadelphia, defendant, blew out on the 1st day of August, 1897.
“ 13. That at the time of the said blowing out, the sluice was, and had been for at least one month, in the absolute control of the defendant, and that it was built under its constant supervision and by its direction.
“ 14. That, in consequence of the breaking of the sluice, the land of the plaintiff was overflowed, and the crops and other property of the plaintiff destroyed.
“15. That said breaking of the sluice and the eonsequént*308 overflowing of the plaintiff’s land and the destruction of his crops and other property was the direct result of the defendant’s negligence in planning, constructing and maintaining an unsafe, improper and defective sluice or dike.
“16. That after the sluice had passed into the possession and absolute control of the city of Philadelphia, the defendant failed to repair it, although the said city had notice, through its lawful agents, that said sluice was defective and out of repair.
“ 17. That, in consequence of said negligence, Robert Betham has suffered damages to the amount of $3,530.60.”
In the foregoing findings, it does not appear that the sluice, whose blowing out caused the injury complained of by the plaintiff, was a part of the sewerage system of Philadelphia, or that it was connected with the same. The plaintiff’s contention, however, is, according to his statement filed, that sometime before his land was flooded, it had become, and continued to be, the duty of the city to construct and maintain the sluice “in a careful and prudent manner, and to make repairs thereto in a skillful and proper manner so as to maintain a thorough and reasonable system of drainage, in order that damage might not ensueand his cause of complaint, as set forth, is, that this duty was so negligently and carelessly discharged, that the injuries resulted to him, for which the city must make him compensation.
The argument in this case was elaborate, and the discussion of the principles involved took an extended range; but we are persuaded upon due consideration, that the reasons for our judgment can be briefly stated. No duty had been imposed by statute upon the city of Philadelphia to either protect the land of plaintiff and the meadow lands, of which it formed a part, from the overflow of the river, or to drain the low-lying ground. If such duty had been imposed, and the injuries suffered by plaintiff were due to a neglect to properly discharge it, the city undoubtedly would be liable. When a legal duty-has been imposed by statute upon a municipal corporation, it is undoubtedly liable for injuries resulting from the neglect of that duty; in such case it stands on the same footing in respect to negligence as a purely private corporation or an individual: Erie City v. Schwingle, 22 Pa. 388; Dillon, Mun. Corp. sec
If there is no liability on the part of the city, due to its failure to properly discharge a duty imposed upon it, is it liable because, in the language of the referee, “ the city of Philadelphia, having undertaken to perform the work of planning, constructing and maintaining the sluice or dike, was bound to plan and construct it properly, and to maintain it in good condition and repair, and failure to do so renders the city liable in damages ? ” If what the city did was done within its corporate authority, if it had the power to do what it undertook to do, and, in the exercise of that authority, or the execution of that power, it was negligent in the construction or maintenance of the sluice, and injury resulted it would be liable : Grant v. City of Erie, 69 Pa. 420; Allentown v. Kramer, 73 Pa. 406. “ The rule of law is a general one that the superior or employer must answer civilly for the negligence or want of skill of his agent or servant in the course or line .of his employment, by which another, who is free
Though it is manifest that no breach of duty imposed upon the city was proven, and no improper or negligent exercise of power conferred upon it was shown that would render it liable to the plaintiff, can it be compelled to pay upon any other ground ? If there was no failure to perform a plain duty, and if there was no power or authority to construct and maintain the sluice, how did the city act? The proper answer to this question would have saved the learned referee from the error into which he fell. It acted either in the exercise of its police power, or as a mere volunteer without authority, in relief of the Meadow Island Company. If in the former capacity, and our judgment is that it did so act, there is no responsibility for any damages resulting from the improper or negligent exercise of the power. No principle is better settled: Elliott v. Philadelphia, 75 Pa. 347; Boyd v. Ins. Patrol, 113 Pa. 270. If, on the other hand, it did not act in the exercise of its police power, the Avork done was that of a mere volunteer, without authority, and was in relief of the Greemvich Island Meadow Company. The duty to do the work was that of the Meadow Company, and if the city did the work in opposition to its wishes, it was done in the exercise of police power, or, if with the consent of the company, as a mere volunteer. If done as a mere .volunteer, no duty arose to the appellant.
Lastly, it was contended on behalf of the appellant, that he was entitled to recover under section 8, article 16 of the constitution, which provides that municipal and other corporations and individuals, invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed for the construction or enlargement of their, works, highways of improvements, and Butchers’
Further discussion is deemed unnecessary, and we now af-firm the judgment of the court below in overruling the referee .and directing judgment to be entered in favor of the city of Philadelphia.
Judgment affirmed.