149 Ind. 670 | Ind. | 1898
This suit was by the appellant, in three paragraphs of complaint. To the first paragraph appellee’s demurrer was sustained, and to the second and third paragraphs demurrers were overruled and answers filed, and to said answers demurrers were overruled. Said several rulings are here assigned as error.
Each of the paragraphs of complaint alleged that appellant owned real estate fronting upon the basin of the harbor at the city of Michigan City and maintained docks for the loading and unloading of merchandise to and from the water craft doing business at said city, said business constituting the principal source of value to said property; that in the year 1883
In each of the second and third paragraphs of complaint it was alleged generally that the appellee had been negligent in the plans and construction of said sewer, in emptying it at said point, the stream in said harbor being sluggish and insufficient to carry away the deposits from said sewer; also, in not removing from the mouth thereof thé sand and sewage so emptied, and in collecting said sewage at said point without furnishing any outlet therefor.
The third paragraph alleged that the damage to his property had accrued since the year 1890. All of the paragraphs sought damages and the first sought also to enjoin the further discharge of sand and sewage into said basin. The answers were that the causes of action did not accrue within six years.
It is a general proposition, which we think applicable to the first paragraph of complaint, that, in the construction of sewers and other public works' authorized by law, cities are liable for consequential injuries resulting from negligence only. City of Richmond
Said first paragraph does not proceed upon the theory of negligence, and does not seek to require the removal of the obstruction to the uses of the docks, but seeks to enjoin the use of the basin as a place to discharge sewage. The gist of any cause of action, under the facts pleaded, there being no negligence in plan or construction, must be in not caring for the sewage, when discharged into the basin, so as not to create and continue a nuisance, as we shall show hereafter.
The sufficiency of the second and third paragraphs of complaint is not presented. Each of said paragraphs proceeds upon the theory that the appellee, by her negligence, created a nuisance affecting the value of the appellant’s property. Were the answers of the statute of limitations available? The argument proceeds upon the question as to whether the cause of action accrued from the time of the act resulting in the alleged nuisance, the construction of the sewer, or from the time of the injury sustained.
Conceding, as we must, from the absence of any question, the sufficiency of the second and third paragraphs of complaint, the cause of action relied upon in each is that by negligence the city has created and maintains a nuisance which directly affects, public navigation and the appellant’s enjoyment of his private property. If the complaint makes out this cause of action, it may be maintained upon authority. Franklin Wharf Co. v. City of Portland, 67 Me. 46, 24 Am. Rep. 1; Brayton v. City of Fall River, 113
In the first of the above-cited cases, a case in all respects like the present, the liability is clearly shown. The rights and duties of the city, the general public, and the private property owners are there given as follows: “The right to build the sewer and outlet implies the right to use them for the purposes for which they were intended, to wit, for the collection and discharge of the debris of that part of the city, where they should be constructed, into the dock below low water mark. But it is to be borne in mind that the right to do this being in contravention of the right of the public, at common law, to use the sea as a public highway, should be construed strictly and made to harmonize, as nearly as may be, with this paramount right of the public; for we do not, by any means, assent to the proposition of the counsel for the defendants that the right of navigation is subordinate to the right of sewerage. No authority has been cited to sustain that position, nor is it reconciliable with the well established doctrine of the common law. The public right to the navigation of the sea is not qualified or limited, at common law, by any private or municipal right of sewerage. ‘It is an unquestionable
In Brayton v. City of Fall River, supra, the question was as to the rights of the city to conduct sewage into docks so as to lessen the depth of the water, and prevent the landing of cargoes at the wharf, and as to the liability for so doing. It was said: “The defendants had the right to make these sewers or drains, and to discharge them into the sea. But this right is subject to some limitations. It does not include the right to create a nuisance, public or private. If the sewers or drains are so built or managed as to create a public nuisance, the defendants are indictable; if a private nuisance is created, they are answerable in damages to the person injured.”
In the old case of Barron v. Mayor, etc,. supra, the question was as to the right of the city of Baltimore, for the purpose of drainage, to conduct certain streams into the docks of the appellants, thereby causing large quantities of sand, earth, etc., to be deposited near the appellant’s wharf, lessening the depth of the water and impairing the access to the wharf. In the full and able discussion of the rights of the parties by Archer, C. J., it was said: “If it was a measure necessary to be done for the public benefit of the inhabitants of Baltimore, and the natural and necessary consequence of the measure has been the permanent injury and sacrifice of the plaintiff’s property; justice seems to demand that he whose property has fallen a victim to the public service should be compensated.in some way. And if he do not succeed, it must be admitted that the most striking and apparent justice
In the case of Haskell v. City of New Bedford, supra,
In 2 Dillon’s Municipal Corporations (4th ed.), section 1047, the author, in discussing this subject, says: “It is, perhaps, impossible to reconcile all of the cases on this subject, and courts of thehighest respectability
Again, in section 1051, it is said: “Where such sewers are built and solely controlled by a municipality, many cases, as shown in the sections of the-text relating to this subject, have held that the municipality is liable for direct inundations of connecting property with water, filth and sewage, where the sewer, although it may have been built pursuant to a plan adopted by the municipality, is negligently maintained by it after the sewer has been shown by experi
And again, in section 1051a, it is said: “In such case the injury to the property owner is manifest. It is caused by the sole act or neglect of the municipal authorities. They alone have the power to remove the cause. The property owner is substantially remediless unless he can quicken and secure corporate action by means of a civil suit for damages. The city as the corporate representative of the fasciculus of local interest which makes sewers a necessity for the benefit of all of the inhabitants of the municipality, is the author of the injury which the plaintiff' in the case supposed sustains in the attempt to benefit all. The dictate of justice is that no person should suffer unequally, and, if he does, that all should make compensation. If the city has the power and the means by taxation or otherwise to remedy the defective sewer, and yet, under the conditions above defined and limited, continues such sewer, it must on legal principles be liable, unless it can justify its act or omission by its legislative powers and duties relating thereto. Certain it is that these powers were not
The decisions of this court, first cited in this opinion, affirm the liability of á municipal corporation for negligence in the execution of a proper public work, the drainage of streets, if, in constructing it, large quantities of water are gathered and confined in one channel, without providing an outlet, and from which they flow upon private lands, and injure the owner. If a public work results in a nuisance these holdings support the liability of the corporation.
What, in view of these authorities, is the rule of limitation as to remedies for injuries resulting,from a nuisance, such as that here complained of? The sewer was doubtless of a permanent character, but the injury was not committed, nor was it completed at the time the sewer was constructed, nor was the sewer itself the nuisance. The injury now complained of is the result of the discharge of sewage into the basin. The negligence alleged is not alone in constructing the sewer so as to empty into the sluggish current of the harbor, but it is also in continuing to empty the sewage into it without employing any means to remove it or prevent the nuisance resulting.
The rule of law is that no right to maintain a public nuisance arises by prescription, and a continuing
The rule in City of North Vernon v. Voegler, 103 Ind. 314, is distinguished from that applicable here, in that the case was held not to present a cause of action for maintaining a nuisance, but it was there held that a - cause of action for damages does not accrue until the wrong or injury has resulted in damage, and Board, etc., v. Pearson, 120 Ind. 426, adheres to this rule. See, also, Schlitz Brewing Co. v. Compton, 142 Ill. 511, 32 N. E. 693; Bonomi v. Backhouse, E. B. & E. 622. The decisions in Ohio, etc., R. W. Co. v. Simon, 40 Ind. 278, and Lucas v. Marine, 40 Ind. 289, cited by counsel for the appellee, give no consideration to the question of the effect of a complete injury, or of a continuing source of injury, but were decided upon the theory that the injurious results had accrued fully more than six years before suit.
Applying these rules to the present case, it is apparent that, from the third paragraph of complaint a
The judgment of the lower court is reversed for the error in overruling appellant’s demurrer to the appellee’s answer to the third paragraph of complaint.