15 Mo. 610 | Mo. | 1852
delivered the opinion of the court.
This ease presents such points, principally, as have been already decided by this court in the cases of Gurno vs. the City; Taylor et al. vs. the City, and Hoffman vs. the City.
“The plaintiff, Lambar, built and occupied a two story brick house on the premises described in his petition, worth fifteen dollars per month renting. That Carroll street, upon which said house fronts, was a public street, but has never been paved or graded, or in any manner improved or altered, save as hereafter mentioned. That about from one to five years ago, the city of St. Louis, by her proper agents, under her ordinance, cut a ditch on the north side of Camoll street (and the north side thereof, was about eight or ten feet from the plaintiff’s house,) for the purpose of conducting the water, which had previously accumulated in that part of the city, from the south and west of Seventh street, through said ditch in Carroll street; which water would otherwise flow from Seventh street towards Carondelet avenue, and distribute itself through various streets running east, and along said streets (Carroll street principally, as one) to the Mississippi river. That said ditch, by the operation of the collection and flow of water, was widened to the width of ten or twelve feet, which prevented the plaintiff from using or renting his house to the same advantage, that he could have done, if the ditch had not been cut, as above stated; and that the loss amounted to at least one hundred and fifty dollars. That the plaintiff put a dam across the ditch to fill up the same, about two years ago, which was removed by one Guibord, under the authority of the defendant, and the ditch made free and unobstructed, as before.”
The law commissioner, before whom this case was tried, gave one instruction for the plaintiff and two for the defendant, and one on its own motion.
The instructions given do not touch the agreed case. The one for the plaintiff refers to the character and authority of the person doing the work, the.proper officer; and the one on the motion of the commissioner himself, puts the case on the negligence of the city authorities in constructing the work and in keeping it so that it should cause no injury to the persons living near it. Neither of these instructions have any foundation on which to rest, and are both wrong
From the agreed case, it seems, that the ditch was dug by the city, by her proper authorized agents, under her proper ordinances. It does not appear, how wide it was when first dug, or how deep; whether it was carelessly kept, or carelessly and negligently managed by the city authorities, after it was dug. There is nothing from the agreed case, by which the city can be made liable under the principles in the cases heretofore decided by this court.
We cannot go beyond the facts as found in the agreed case, and if
We do not pretend to say, but that for neglect or unskillfulness and mismanagement, in constructing public improvements, that there might be cases presented, in which the city’s liability would be manifest; but we are not authorized to make presumptions of facts, upon an agreed case. We take the facts as found, as agreed, and suppose they are all the facts in relation to the matter in controversy.
Under this view then, the court below erred. The city is not liable upon such a state of case. The judgment below is reversed,