95 Neb. 582 | Neb. | 1914
This is an action against the city of Auburn by plaintiffs, the owners of residence property in said city, for damages to real estate by the overflow of surface water, alleged to have been caused by a change of the sidewalk grade, and the imperfect and negligent drainage of the streets adjacent to the property, to the extent of overflowing of the lots upon which the residence is located, and thus impairing their value and their use as residence property. The action is based upon two allegations of the petition; one, that the dwelling-house was originally constructed with reference •to and corresponding with the street as it then existed, and that by a subsequent elevation of the sidewalk in front of the premises the house and lots were caused to be at a lower level from the sidewalk, the danger from overflow increased, and the value of the property thereby reduced and impaired; the other, that the city wrongfully, negligently and unlawfully constructed a ditch or waterway along and near the lot line and a drain or ditch across the street in front of the premises by which an increased flow of water was turned upon and against said lots, but without adequate drainage for the increasd flow, and by reason whereof a large volume of surface water was thrown against and over the sidewalk space and onto the lots, to the injury of plaintiffs and damage to the property, which was used as a residence. The answer consists of a denial of unadmitted facts, and alleges, in substance, that the house was orig
The cause was tried on the part of each side with á high degree of care and skill, and, apparently, every proper phase of the case Avas presented to the jury. The same commendable care has been observed in the presentation of the cause on this appeal. However, it will not be deemed necessary to folloAV the discussions as contained in the briefs and oral argument, as the case may be disposed of to our
As we view the record, the principal lines of contention were submitted to the jury on sharply conflicting testimony. Aside from the inconvenience of access to the property by the elevation of the sidewalk space in front of the lots, the already high surface as compared with the level of the property, we are scarcely persuaded that the subject merits very much attention. The surface of the lots was below the level of the street grade established by long user. The elevation of the sidewalk, the extent of which was sharply in dispute by the witnesses, was probably, in part at least, for the protection of the property in the prevention of the overflow of the surface water onto the lots from the street, but mainly for the improvement of the street and sidewalk. In the estimation of some of the witnesses this change had an injurious effect upon the value of the property, while other witnesses were of the opinion that the two lots owned by plaintiffs were benefited thereby. On this subject the conclusion to be drawn was for the jury. In addition to the oral testimony, the jury were, by order of the court, sent to view the premises, which it is presumed they did, and by that means the actual view furnished to the jurors a line of evidence not presented to the trial court, nor to this court. While not attaching so much importance to this feature of the case, we are reminded that it may have been, and probably was, considered by the jury as a partial basis for their verdict.
As we view the case, the principal element of damage as found by the jury arose from the effort of the city to take care of surface water by a system of drainage, as to which it was claimed, and the evidence introduced tended to show, that the volume of water carried in the drains was largely increased in time of rains and melting snows, and that to such an extent as to damage plaintiffs’ property. The lots are situated in the south end of the west half of the block, the west ends fronting to the west upon Sixth street, while Twelfth avenue is along the south line. There is evidence that in the construction of the drainage system
We take it that it is a. well-settled principle of law that neither the owner of land nor a municipal corporation has any right to collect waters and discharge them upon the lands of another in a greater quantity than what would have reached the property by natural drainage. Elliott v. Oil City, 129 Pa. St. 570; Byrnes v. City of Cohoes, 67 N. Y. 204; 30 Am. & Eng. Ency. Law (2d ed.) 339; Lincoln & B. H. R. Co. v. Sutherland, 44 Neb. 526. In 10 Am. & Eng. Ency. Law (2d ed.) 243, it is said: “It is well settled according to all the authorities that, were the effect of the sewer, whatever its plan, is to cause a direct invasion of private property by collecting and throwing upon it in new channels or in increased quantities water that would not otherwise have found its way there, the corporation is liable.” We can conceive no reason why the same rule should not be applied to surface drainage or surface sewers. Therefore, assuming the verdict of the jury to be sustained by sufficient evidence, which we must, we cannot say that it is contrary to law.
The deposition of a witness was taken and read in evidence by the transcript of his testimony furnished by a stenographer. It was offered to prove by the stenographer’s shorthand notes that the witness had testified that at a time before the improvements were made the water had accumulated in the cellar of plaintiffs’ property to the depth of three or four feet, but by the transcribed testimony the witness had used the word “inches” instead of “feet.” The stenographer was called as a witness, and asked to produce his shorthand notes and testify that, the notes were correct, but that in transcribing them he had inadvertently changed the word “feet.” to “inches.” Objection was made to the offered testimony, and the ob
Objection is made to certain instructions given to the jury by the court, among which is the sixth, which is as follows: “You are instructed that the city is liable under the constitution of this state to lot owners for such damages as they may sustain by filling in the street in front of their lots above the level of the same, when the buildings were erected on the lot before the grade was established.” While we may not be able to fully comprehend the necessity for giving this instruction, yet there is no doubt of its correctness as an abstract proposition. It has often been said that the statement of abstract propositions of law in instructions to juries is not always to be commended. The instruction is substantially a copy of the syllabus in Harmon v. City of Omaha, 17 Neb. 548. It is insisted that, while the doctrine' is correct in a proper case, it can have no application to the one now under consideration. It is shown by the evidence that after the construction of plaintiffs’ residence the sidewalk in front thereof was raised to an uncertain extent, according to the estimates of the witnesses, ranging from a very few inches to a greater height, and to that extent the instruction might be applied. It may be that at that time the street grade had been established by user, but, if so, that grade was changed in so far as the sidewalk space was concerned. We see no reversible error in giving the instruction.
The giving of instruction number 21 is assigned for error. It is as follows: “You are instructed that, if you find from all the evidence in this case that the plaintiffs
Objection is made to the action of the trial court in refusing to give certain instructions requested by defendant, and in giving instructions requested by plaintiff. As to those refused, we need only say that their substance is sufficiently included in those given. We are unable to detect any prejudicial or reversible error in those given. In view of their length, we must refrain from copying them here.
Finding no error which calls for a reversal of the judgment, it is
Affirmed.