City of Kansas City v. Brady

52 Kan. 297 | Kan. | 1893

The opinion of the court was delivered by

AlleN, J.:

The theory of the plaintiff was that the construction of the covered water way was the joint act of the city and the Orchard Place Land Company; that the whole structure should be treated as one entire thing, and that both defendants are liable for any defects in its construction; that the city engineer, as a representative of the city, planned the work; and that the city is responsible not only for any defects in the construction of that part which was built and paid for by the city, but of that which the Orchard Place Land Company constructed as well. The jury found that the embankment and culvert constructed .by the city would not have caused injury to the plaintiff, and that the obstruction of that part of the drain which was built by the Orchard Place Land Company did cause the overflow of plaintiff’s property. The only ground on which the jury based the city’s liability, given in answer to the special questions, is in locating the sewer, and permitting the land company to attach its sewer to the city sewer, and for neglecting to require the Orchard Place Land Company to keep its sewer in repair. The building of the sewer was not all done either at one time or as one act. The city finished all it constructed some time before the land company built its part. That part constructed by the land company was wholly on its own lands, where it needed no license nor authority from the city. It was wholly outside of the official duty of the city engineer to make plans or give directions as to what the land company should do on its own property. The city council had no other or greater jurisdiction over its property than over that of any other proprietor owning land along Splitlog creek. It had no lawful authority to permit anyone to obstruct a natural water course.

L turnase-nouiaijic" It is not contended that the obstructions placed in the bed of the stream by the land company were a nuisance, which it was the duty of the city to remove, and that the city is liable because of a failure of the city officers to remove a nuisance,' but plaintiff seeks to connect the city with the original placing of the obstruction in the stream. It is expressly found that the part of the sewer which caved in and caused the obstruction was built solely by the land company. The mere fact that it was built on the same plan as that constructed by the city, and that it joins the city’s part either on the line between the street and the land company’s property or on the company’s land, does not show, nor tend to show, any connection of the city with it. Generally speaking, property owners have a right to build what they please on their own lands, provided they do not thereby occasion injury to others. They have no right to obstruct natural water courses, nor have the city authorities the right to permit them to do so. If they do place obstructions in a stream, and thereby occasion a nuisance injurious to others, it may be that the city authorities would have the right to cause its removal j but private individuals injured thereby also have an independent remedy, and may proceed in the courts to cause its removal. Suppose, in this case, that there were a succession of private landowners, who saw fit to construct covered ways for the flow of the water of this stream; five of them so constructed their portions that no injury would result to anyone, but the sixth builds his drain, as that of the land company was built, so that it falls down and causes injury: would the mere fact that the obstruction prevented the water from flowing through the parts of the drain eonstrueted by the other five render them liable also? or could it be held that the similarity of construction had anything to do with the case? and how could one proprietor prohibit his neighbor from joining on and extending the water way from the boundary line across his own land ?

2- “ten™?.’ It cannot be successfully contended that the city is responsible for any bad advice or defective plans the city engineer may have made for private parties. The city can only be bound for acts of its officers done within the lines of official duty. The city engineer’s public duties terminated with the end of that part of the culvert which the city in fact constructed. Eor whatever he may have done beyond that, he may, perhaps, be responsible individually, but the city is not. The jury find that the city completed its embankment about two months before the Orchard Place Land Company built the embankment below it. Counsel for defendants in error cite us to many authorities to the effect that the city has no right to obstruct a natural water course, and that where two or more, by their concurrent negligence, cause injury to a third person, they are jointly and severally liable. With the correctness of this proposition we are not disposed to take issue. We have carefully examined the ease of Bryant v. Bigelow Carpet Co., 131 Mass. 491, which counsel so confidently rely on as strictly in point, and have no fault to find with it. The plaintiff’s injury in that case was occasioned partly by the act of the carpet company in constructing its dam, and partly by that of the railroad company in constructing its embankment, and permitting the culverts thereunder to become obstructed. Both concurred directly in causing the overflow which destroyed the plaintiff’s property, and it did not appear that the injury would have resulted without such concurrence; but in this case the jury find, in effect, that the injury was occasioned solely by the obstructions on the Orchard Place Land Company’s property. It does not appear that the flow of water over plaintiff’s premises was increased a drop by reason of the embankment built by the city. In that case, it appeared that the carpet company raised its dam so as to raise the height of the water six or seven feet above the top of the culverts under the railroad, but the water on the side of the road nearest plaintiff’s property was raised by the railroad company’s embankment more than two feet higher than on the other side. In other words, the carpet company raised the water part way and the railroad company raised it the rest. The dam of the carpet company would not alone have caused the injury, nor would the embankment of the railroad and its defective culverts alone have done so. The carpet company erected insufficient embankments to sustain the water on the side next plaintiff’s property, and was negligent in that respect. The decision is placed explicitly on the ground that the acts of both defendants contributed to plaintiff’s injury. We think that case was correctly decided, yet that it does not assist the plaintiff in this. It is true the jury found that the culvert built by the city was defective, being too small; but this could give the plaintiff no cause of action against the city unless the defect caused injury to her. Her property was located about a thousand feet up stream; and, though the obstruction caused by the grading of Ten-ney avenue would have caused the water to flow back in time of floods, the jury found that it would not have occasioned injury to the plaintiff. This is not á case where the city dams up one outlet and the Orchard Place Land Company another, so that the two acting together retain the water, but the obstruction which causes the injury is solely the work of the Orchard Place Laud Company. Section 287 of the code provides: “When the special finding of r , 1 0 facts is inconsistent with the general verdict, the 3' inconsistent with verdict. former controls the latter, and the court may give judgment accordingly.”

4' liable"01 We think the findings in this case show that the city is not liable. The judgment will be reversed, and the case remanded, with directions to enter judgment in favor of the defendant, the city of Kansas City, for costs.

All the Justices concurring.