9 Kan. 603 | Kan. | 1872
The opinion of the court was delivered by
This action was brought for damages to certain goods caused by the accumulation of surface-water in the cellar of defendants in error, plaintiffs below. The only errors complained of are those supposed to have been committed by the court in charging and in refusing to charge the jury. For this reason only, so much of the evidence as it was supposed would show the relevancy of the instructions-given, and those refused, has been brought to this court. The verdict of the jury was a general verdict, and no special findings of fact were made. Hence we shall not attempt to-comment upon the evidence, nor upon the facts of the case, any further than is necessary in reviewing the instructions, but will confine our remarks to the instructions given and those refused.-
The evidence brought to this court tends to prove that the plaintiffs’goods were injured in the following manner: The cellar of the plaintiffs was located near the middle of the south side of block fifteen in the city of Atchison. Sixth street was situated immediately west of said block. The
The rulings of the court below in charging the jury were unquestionably erroneous. But Avhcther the errors affected the substantial rights of the defendant beloAV, (plaintiff in error,) is more difficult for us to determine. . After a careful examination of the Avhole case aatc have however come to the conclusion that wc cannot say that said errors did not affect the substantial rights of the defendant beloAV, but on the contrary AAre think Ave can say that they did. We think that they AArere not only errors of law, but that they tended to mislead the jury as to the facts. The judgment must therefore be reversed for said errors. The substance of the charge, as gathered from the instructions given and from those refused, Avas in brief about as folloAVS: Whenever a city attempts to carry off surface-water by constructing an artificial drain of any kind, of any size, or of any capacity, whether for temporary purposes or for permanent use, the city thereby becomes and forever remains absolutely responsible as an insurer against any and all damages that may be caused by the floAv of surface-water, Avhatever may be the extent of the rains;
We suppose it is well settled that a city has a right to grade its streets, and if done with proper care it will incur no liability of any kind, or to any person, Avhatever inconvenience may result to individuals. It may incur liability by carelessness' or negligence in grading a street, or by so grading a street as to stop up or obstruct a natural Avatercourse, or by carelessly or negligently alloAving a drain or sewer already constructed ,to “become''filled up or obstructed so as to cause injury to a private individual; but it cannot incur liability by simply grading a street so as to stop, the passage of merely surface-Avater, and thereby cause such water to accumulate on the premises of some private individual. It is undoubtedly true, that a city, in grading its streets, is bound to keep open a sufficient channel for a natural Avatercourse so as not to obstruct in the least the Avaters flowing therein; but it is equally true, and as Avell settled, that a city is not bound to construct any channel, culvert, seAArer, or drain, to carry off merely surface-Avater. The construction of sewers and drains to carry qff merely surface-Avater is purely discretion-' ary Avith a city. It may construct them or not, at its option, and just as it may think best. With these vieAvs Ave think the rulings of the court beloAV harmonize, andaré therefore to this extent not erroneous. " But the court .below Avent further. Upon its rulings Ave think the following questions among others are' raised, to-wit: First.-Wh.en a city .constructs a sewer or drain for the purpose of carrying off surface-water is it bound to construct such a sewer or drain as will be sufficient to carry off all the surface-water, in all cases, and under all circumstances? Second.—After a city has constructed
First: Whether a city will construct drains of any kind, •and where it will construct them, are purely discretionary. This principle is so well settled that it is not necessary to cite authorities in support of it. This discretionary power exercised by cities is, by many courts, considered as a kind of quasi judicial power. Now, if a city is not bound to construct a drain of any kind, by what system of reasoning can it be made to appear that if it shall'construct a drain it must construct one that shall be sufficient in all cases, and for every •emergency ? Any drain is better than no drain. Any drain instead of being an injury to a party is, so far as it operates, a positive benefit. If it-carries off half the water that falls upon his premises, instead of the whole, how camthat be said to be an injury ? Is it not an actual benefit to' the extent that it operates ? And if a benefit, upon what principle can the city be made liable ? A city in exercising its discretionary or quasi judicial powers acts not merely for a private individual or individuals, but for the general welfare of all its citizens. And in constructing drains it may construct them so as to drain the streets or alleys only, or so as also to drain the property of its citizens; and in draining the property of its citizens the drains may be so constructed as to carry off all the water that may fall or accumulate on the premises of an individual, or only a portion thereof; and they may be so constructed as to carry off all the water that may fall or accumulate on the premises of one person, and only a portion of what may fall or accumulate oh the premises-of some other persons. We think it is true that if a city constricts a drain every individual interested in the drain has a right to rely upon the drain operating to the extent of its capacity, and if the city, through negligence, allows the drain to become obstructed so that injury results to some private individual, the city as a rule becomes liable. But we know of no prin
There are other questions in this case; but as we have not qll the evidence before us, and cannot know from the record, precisely what the facts are, we shall not now consider them. Among those questions are the following: First.-If the-plaintiffs knew the condition of the said block, the streets, the culvert, the pond, the cellars through which the water passed in getting to their cellar, and'the condition of their own cellar, did not their own negligence in storing the goods in said cellár, and in allowing them to remain there during-such excessive rains, contribute as much or more to the injuries complained of as the negligence of the city in not keep- • ing open or constructing sufficient drains ? and if so, can they recover? Second.—As the city was responsible for the rain that fell on the north half of said block only, and not for what fell on the south half of said block, and as it was the water from both halves of said block, acting together, which caused the injuries complained of, is the city liable? (Moore v. Abbott, 32 Maine, 46; Moulton v. Inhabitants of Sandford,