75 S.W.2d 1039 | Ky. Ct. App. | 1934
Reversing.
Mrs. Hatcher Chyle instituted this action against the city of Auburn, a city of the sixth class, to recover damage for the "negligent failure of the city to provide sufficient sewers, catch basins and drainage to prevent surface drainage from being so collected and concentrated at a point where same would overflow said catch basins, sewers and ditches in such a manner as to dump same onto her property." She charges the city "regraded, raised and changed the surface of the streets and placed metal thereon and caused ditches, drain basins and sewers to be cut along and over said improved streets in such a manner as caused the water to collect at a given point where it overflowed the channel provided for carrying it and was thereby dumped out and over onto her property," thereby "covering her entire property to the depth of several inches, running *284 under her house and into her house and causing the same to decay."
The general demurrer filed to the petition was not passed upon by the court. By an appropriate pleading issues were joined, and on the evidence adduced a verdict was returned in her favor of $750. The city requested the court to direct a verdict in its favor, which the court declined to do. It is here complaining, inter alia, of the action of the court refusing this instruction.
The streets of the city, about twenty years before the filing of this action, were macadamized a width of about 14 feet, with drains or ditches on both sides. Mrs. Chyle acquired title to her lot in 1922, in which year she erected a dwelling thereon. A portion of her lot is located at one of the lowest points in the city. The formation of the territory in which the streets are located causes the rainfall to drain in the direction and onto a portion of her lot. At one time the territory comprising the lots and streets involved was owned by O.M. Crewdson. At that time sink holes were at the low point on and near the lot of Mrs. Chyle into which the surface water drained. In later years a colored man occupied a small residence situated on or near a portion of the rear of the lot of Mrs. Chyle. On account of the water flowing from the surface of the territory where the streets now involved are situated, around and about the dwelling occupied by the colored man, it became known as the "Floating Palace." A drain has existed near the line of Mrs. Chyle's lot and that of the adjoining lot into which the water from the street flowed, and passed on to the rear of her lot. The period of time this drain has existed is not clearly shown by the evidence. Mrs. Chyle's statement was that the drain across her lot was made by the laying of a pipe line. The lower end of this drain for some time before the bringing of this action was stopped up and interfered with the flow of the water. After the streets were macadamized, at irregular intervals, the drains or ditches on or along the sides thereof were cleaned out by the city authorities. The macadam became worn, lower at some points than others; "duck nests" or "pot holes" were in the streets, and on account of their condition, about two years before she brought this action, the city authorities caused the streets involved in this action to be scarified, crushed stone spread on them, rolled, and then constructed what is commonly knoNm as a traffic-bound *285 surface; the drains on the side of the streets were opened up for the purpose of carrying the water from the streets. A ditch at the old Crewdson Hotel, or where it was formerly located, was cleaned out by the city authorities. It carried the water out between "the back of Uhl and Company's Drug Store and on toward Mrs. Chyle's property." On Pearl street, back of the Utilities Company, the water shed back of the electric shop and Mrs. Howlett's, to the creek. In 1931, this ditch was opened by the city. It had previously existed, but was made no deeper.
Without further detailing the evidence, it may safely be said it sustains the allegations of the petition as herein reproduced, but there is no evidence showing either negligence or bad faith of the city.
It is the theory of Mrs. Chyle that, "when a city undertakes to make improvements or alter or reconstruct old ones, it then assumes the duty of completing and keeping them in such condition that the property of the citizens will not be injured thereby." To sustain this statement of the law, she cites Campbell v. City of Vanceburg, 101 S.W. 343, 30 Ky. Law Rep. 1340; City of Louisville v. Knighton, 100 S.W. 228, 30 Ky. Law Rep 1037, 8 L.R.A. (N.S.) 478; Harney v. City of Lexington,
"A municipal corporation is liable to a property owner who has been damaged directly or indirectly by the action of the municipal authorities in the improvement or repair of its streets or other municipal improvements."
She also cites City of Louisville v. Norris,
"When a municipality determines to change the natural order of things, by altering the surface drainage, and collecting it into artificial channels, it cannot fail to use ordinary good judgment in adopting *286 the plan of the work, without liability to any person injured thereby."
The principles enunciated in the cases cited by her are consonant with the principle that lower lands are subject to the servitude of receiving the ordinary and natural flow of surface water, and the facilitating and accelerating the flow of the surface water by leveling the surface, the quantity of flow not being increased nor the directions changed, are not actionable. The prevailing rule reiterated in City of Ludlow v. Broderick,
The evidence developed by Mrs. Chyle shows the city merely performed its duty in the repairing and resurfacing the streets involved, and opened up the drains on the sides thereof, needed to take care of the rainfall, and, after it did so, the surface water accumulated at the same point, flowed in the same drains or ditches (the same being merely repaired or cleaned out), and overflowed Mrs. Chyle's premises in the same way it did before the acts of the city were performed in reference to repairing the streets and cleaning out the drains or ditches.
Other questions are debated in the briefs of the parties. It being our view the court erred in refusing to direct a verdict for the city, we decline to consider them.
Wherefore the judgment is reversed for proceedings.
