58 Kan. 334 | Kan. | 1897
We think the City is answerable to the plaintiffs for the damages resulting from the precipitation of the sewage and river water upon their premises. Although their buildings were erected upon low ground, the rim of the high land along the river effectually confined the water therein, and protected the plaintiffs’ property from the overflow of the river in rainy seasons and when freshets occurred. It seems that there is but little fall in the land toward the river in that portion of the City, and that the sewers are so constructed that in case of high water the sewage and river water flow back, and are forced out of the openings near the plaintiffs’ premises, inundating them to a depth of from one to three feet. From the
the municipal authorities.' The City cannot without liability collect sewage and filth and precipitate it upon the property of a citizen, even if the plan is devised in good faith and the best material is used in the construction. It is immaterial from which end of the sewer the discharge is made ; the consequence and liability are necessarily the same. “ Courts of the highest respectability have held that if the sewer, whatever its plan, is so constructed by the municipal authorities as to cause a positive and direct invasion of the plaintiff’s private property, as by collecting and throwing upon it to his damage water or sewage which would not otherwise have flowed or found its way there, the corporation is liable.” 2 Dillon on Municipal Corporations (4th ed.), § 1047. See, also, Ashley v. Port Huron, 35 Mich. 296; Tate v. St. Paul, 56 Minn. 527 ; Seifert v. City of Brooklyn, 101 N. Y. 136; Tehn v. San Fran
Upon the facts stated, a right of action is shown to exist in the plaintiffs, and therefore the judgment of the District Court will be reversed and the cause remanded for a new trial.