122 Mich. 694 | Mich. | 1900
The plaintiff is a paving contractor. On June 15, 1891, he made a contract with the city of Detroit whereby he engaged to pave a portion of Jefferson avenue, and to keep and maintain such pavement in good condition and repair for five years. About April, 1894, he was notified by the board of public works that he must repair this pavement, on account of depressions therein, and he did so, at an expense of about $535. It is claimed on his behalf that the depressions were caused by the failure of the water board to properly fill and settle a trench in which it laid a water-pipe previous to the time that the
In the act creating the water board it is provided that:
“They [the commissioners] may at all times enter upon and dig up, with like restrictions as to travel, such street, alley, road, or way, to lay such pipes or construct such aqueducts and other works beneath the surface thereof, and to maintain and repair or renew the same, returning the street, alley, or way to its former condition, so far as may be.” Act No. 359, 3 Laws 1873, § 8.
It is contended that a failure to restore the earth to its original condition was a neglect of duty, and that a right of action exists in favor of the plaintiff for the injury which the settling of the ground occasioned him. He accordingly brought this action, and appeals from a verdict of no cause of action directed by the court.
There were no contract relations between the water board and the plaintiff. If, as he contends, he had a right to rely upon the supposition that the street was uniformly solid and would not settle (in other words, if the city were under obligations to furnish him a foundation ), he was under no obligations to make repairs made necessary by the defective foundation. On the other hand, it was competent for him to take his own risks in this respect, and apparently he supposed that he did so. The, water board was required by law to fill its trench. Perhaps it could have been compelled to do so by the city, if it had omitted this duty. Nothing shows that it did not put back all of the dirt removed, nor does it appear that some of it was not afterwards removed before it had fully settled, either by the city or the contractor himself. It is evident that the complaint made is that the earth was not so packed by the employés of the board that it would not settle. But suppose this be so; this was, at most, a duty owed to the public, to be enforced by the public, and not a wrong perpetrated upon the man who might subsequently make a contract to grade or pave the highway. Counsel cite no case that sustains the plaintiff’s conten
The judgment is affirmed.