23 Ind. 381 | Ind. | 1864
The appellee sued the appellant, alleging, that he owned, and resided on, a certain half lot ih'.PIncennes; that the city, by erecting and maintaining diversJ culverts, embankments, ditches, water-ways, grades, kncL excavations upon certain streets of the city, caused ^hé) waste water, which before had been accustomed to flow elsewhere, to be diverted from its natural channels, and thrown upon the appellee’s lot.
The city answered in three paragraphs, the second of which alleges that the city is incorporated under the general laws of this state; that the common council ordered said streets to be graded and improved; that, in pursuance of such order, it did erect and still maintains said culverts, etc.; that the work was done in a careful and proper manner, and in the judgment of the common council was proper and necessary, and that the damages, if any, were the necessary consequence of said improvement, and were
"We think that the paragraph was good. The question presented is not new in this court. The statute (1 G-. & H. 231) gives the city full power to do what it is alleged to have done in the improvement of the streets. It has full authority to repair the streets, and to construct drains and sewers. If it does this with proper skill and care, and without malice, as the paragraph alleges in substance, and consequential injury result to the citizen, he has no remedy, and the fault, if any, is in the law, which we must declare as we find it to exist. City of Ghreencastle v. Hazlett, at this term; Lafayette v. Bush, 19 Ind. 326; Macy v. Indianapolis, 17 Ind. 267; Wood v. Hears, 12 Ind. 516. The principle declared by these cases is fully sustained by well-considered cases elsewhere. A collection of many of these, as well as a most able and exhaustive discussion of the question itself, by Mr. Ch. J. Bronson, may be found in Radcliff’s Ex’rs v. Brooklyn, 4 Comst. 195.
The judgment is reversed with costs; cause remanded, with instructions to set aside all proceedings subsequent to „ the filing of the amended answer.
