67 Ind. 228 | Ind. | 1879
111 this action, the appellees sued the appellant- in a complaint of a single paragraph, wherein they alleged, in substance, that the appellee Caroline M. Paxon was the owner, and in the possession by joint occupancy with her husband, her co-appellee, of certain town lots, particularly described, within the limits of the city of South Bend, which had been conveyed to her in fee-simple, by warranty deed dated August 28th, 1866 ; that, at that time, there was a stream of water, fed and supported by living springs,- flowing across said town lots, and having a free, easy and rapid egress into the St. Joseph River, by which the waters were carried away; that, at the date of said deed, the appellees took possession of said lots and erected thereon a comfortable frame dwelling-house, with a dry and convenient cellar thereunder, at the intersection of Madison and St. Louis streets, and, during the year 1867, they moved into and have ever since occupied the said dwelling-house as their family residence ; that, for a number of years after their occupancy of said dwelling, the said running stream, which had its head a mile or more in a south-easterly direction above the appellees’ said residence, continued to flow in its natural channel across the appellees’ said lots, and carried off, by free and rapid flow, all the water accumulating by rain-fall and the discharge of said living springs, and discharged the same into said St. Joseph River, so that, during said time, the appellee Caroline M. enjoyed her said property and was not damaged by the waters of said stream ; that said lots and improvements were then worth two thousand dollars ; that, during said time, a living spring, affording the appellees an unfailing supply of pure and cool water, appeared on said lots and discharged into said running stream; that the appellant, having exclusive jurisdiction of the improvement and drainage of streets and theffuildingof sewers, within its corporate limits, on or about the 1st
To this complaint, the appellant answered by a general denial, and the cause being'at issue was tried by a jury,
The only error assigned by the appellant, in this court, is the overruling by the court below of its motion for a new trial. In this motion, a large number of causes were assigned for such new trial; but we are informed, in the brief of the appellant’s counsel in this court, that “ the particular error relied upon by appellant for the reversal of this cause is in the instructions given by the court.” In our consideration and decision of this cause, therefore, we shall limit ourselves to an examination of the instructions of the court to the jury trying the cause, and to such only of these instructions as the appellant’s counsel has complained of in his well considered brief of this cause. It maybe properly remarked in the outset, that neither the appellees nor their counsel have favored this court with any brief, in support of the rulings or instructions of the court below in this case.
The first instruction complained of in argument, by the appellant’s attorneys, reads as follows:
“ No. 6. If you find for the plaintiff, the measure of damages will be the fair rental value of her premises, or such part as you find from the evidence she has been deprived of, during such time as she has necessarily been deprived of them; and, if you find the value of the premises has been permanently diminished, then she is entitled to compensation for such permanent diminution.”
It will be seen from this instruction, that it contained two separate and distinct propositions, and it seems to us that the instruction was not erroneous as to either proposition. It is intimated, rather than asserted, in the brief of the appellant’s counsel, that the appellees’ complaint contained no allega
In this instruction, as we construe it, the court virtually said to the jury, that, if they found for the appellees from the evidence, that the allegations of their complaint, or a material part thereof, were true, the measure of their damages would be the fair rental value of their premises, or of such part thereof as the jury might find from the evidence they had been deprived, during such time as they had necessarily been deprived thereof by reason of the alleged wrongful or negligent acts of the appellant; and if the jury should find from the evidence, that the value of the appellees’ premises had been permanently diminished thereby, then they would be entitled to compensation in damages for such permanent diminution of the value thereof. This was the plain import and legal effect of the instruction above quoted, and we think it must have been so understood by the jury trying the cause. It seems to us, that, as to each of the propositions contained in this instruction, it stated correctly the true measure of the appellees’ damages. Nor do we think that the instruction was fairly open to the objection urged against it by appellant’s counsel, that the jury were therein and thereby “ directed to assess excessive damages.” The case of The City of Indianapolis v. Huffer, 30 Ind. 235, cited by counsel in support of this objection to the instruc
The appellant’s counsel complain, in argument, of another instruction of the court, which reads as follows :
“ No. 8. If you find from the evidence, that the defendant City had, prior to the construction of the drain across St. Louis street, established a system of general drainage for the city, and that said sewer was a part of said general system, or that, since the construction of such sewer, the city so graded and improved its streets and arranged its sewers and drains as to connect with said sewer across St. Louis street, and thereby constituted and made it a part of its system of general sewerage and drainage for the city, then the defendant, although it may not originally have been obliged to construct the sewer in controversy, yet, having elected so to do, and having acted under said election and constructed the drain, it is bound to keep it in repair ; and if you find from the evidence, that it has negligently and carelessly suffered the same to become obstructed and out of repair, and that the plaintiff has been injured thereby, without herself in any manner contributing to said injury, that is, using ordinary care to
It is insisted by the appellant’s counsel, that this instruction “ is not the law ; that the city is not bound to keep open every drain that has been constructed, — not bound, because it has once furnished a convenience, to warrant it to the property owner, that has enjoyed it, in perpetuity.”
It does not appear from the record of this action under what law the appellant was incorporated as a city; but it has been repeatedly held by this court, that, where a city is a party to a suit, it will be presumed, nothing appearing to the contrary, that such city is incorporated under the general law of this State providing for the incorporation of cities., Lowrey v. The City of Delphi, 55 Ind. 250.
Under section 61 of this general law, the common council of a city have “exclusive power” over the- streets, highways and alleys, within such city. 1 R. S. 1876, p. 300. In section 50 of said general law, it is provided that “ The common council shall have exclusive power to keep open streams, and preserve, and if necessary and expedient, change the course [thereof], and of rivers passing through or bordering upon the corporate limits of such city,” etc. 1 R. S. 1876, p. 287. In the forty-third clause of section 53 of said general law, it is provided that “ the common council shall have the power to enforce ordinances : * *
“ To construct and regulate sewers, drains and cisterns, and provide for the payment of the cost of constructing the same,” etc. 1 R. S. 1876, p. 294.
These were the powers of the appellant, as an incorporated city, under the general law of this State for the incorporation of cities, over the streets, the stream of water and the sewer or drain, mentioned in the appellees’ complaint in this action. Where such powers exist, it can not be questioned, as it seems to us, that the duty arose therefrom, and devolved upon the appellant, to keep open the
If, as the court charged the jury in the instruction last quoted, the appellant had constructed the sewer or drain under St. Louis street, it was bound under the law, as it seems to us, to keep the same in such repair that it would accomplish the purpose for which it was intended ; and if the appellant had negligently and carelessly suffered such sewer or drain, so constructed by it, to become obstructed and out of repair to such an extent that the appellees’ premises, without fault on her part, were thereby injured, then it seems to us, that the appellant became and was liable in this action, and the appellee became and was entitled to compensation in damages for the injury to her premises.
In our opinion the instruction last quoted contained a true statement of the law applicable to this case, and was not erroneous. TJuder the allegations of the complaint in this case, it was clearly the legal duty of the appellant to keep the sewer in question in good repair; and whether this duty may or may not continue in perpetuity, will depend very much upon the powers with which the appellant may hereafter he clothed by legislative authority. It the appellant’s powers over the subject under consideration, as they now exist, continue in perpetuity, then the appellant’s duties, necessarily resulting from such powers, may also he expected to continue in perpetuity.
Ve have now fully considered the instructions of the court, complained of by the appellant’s counsel in this
The judgment is affirmed, at the appellant’s costs.