Lead Opinion
— When this cause came on for trial in the circuit court, counsel for plaintiff made a statement of the facts which he proposed to prove. The statement was taken as proof of the matters recited, and thereupon the court directed a verdict for defendant, and plaintiff took a non-suit with leave, etc.
This statement, which for the purposes of this appeal must be taken as true, is not as full as might be desired, but it discloses these facts: The plaintiff owns fifteen arpents of land in the corporate limits of the city of St. Louis, bounded on the north by Page avenue and on the east by King’s Highway. To the north thereof, and separated therefrom by Page avenue, is a block of land, and formerly the surface water on this block, as well as from a large district of country to the north thereof, flowed eastwardly and southwardly
■The only question is whether these facts constitute a cause of action, and that they do we entertain no doubt. According to the rules of the civil law, as adopted by many if not most of the states of this Union, the owner of the higher adj oining land has a servitude upon the lower land for the discharge of surface water naturally flowing upon the lower land from the dominant estate. But it is well settled by the decisions of the courts which follow the civil law that this servitude extends only to surface water arising from natural causes, such as rain and snow, and that the owner of the higher land cannot collect the surface water in drains, trenches or otherwise and precipitate it in a body upon the lower land to the damage of the owner thereof. Grabtree v. Baker,
The supreme judicial court of Massachusetts is pronounced in its adherence to the common-law rule as it is called on this side of the Atlantic. That court uses this language : “ But there is a well-settled distinction, that although a man may make any fit use of his own land which he deems best, and will not be responsible
The question presented by this record is whether the defendant may, in the construction of its streets, collect surface water and then by means of drains and conduits discharge it in volume upon the land of an adjoining proprietor. Prom the authorities before cited it makes no difference whether this particular question is tried by the rules of the civil law or by what is called the common-law rule. The result is the same, for either line of decisions rules this question against the defendant. According to our adjudications, at this day the defendant may grade and improve its streets, and is not liable for injuries arising from the incidental interruption or change in the flow of the surface water, save such injuries as may arise from the negligent doing of the work. Jones v. Railroad,
We deem it unnecessary to pursue this question any further. As we understand the law its judgment is, upon the facts before us, that defendant must respond in damages. The judgment is therefore reversed ■ and the cause remanded.
Dissenting Opinion
DISSENTING OPINION.
— Not being able to concur in the opinion of my associates in this cause, I present the following statement of the case, together with my views of the law, and the reasons for my non-concurrence. The petition in this case, after alleging that plaintiff is the owner, and in possession of a tract or parcel of land, situated in the city of St. Louis, containing fifteen arpents, more or less, and bounded west by the land of Bernard Pratt, south by land of owners unknown, east by the King’s Highway and north by Page avenue, proceeds as follows:
“Plaintiff further states that defendant, illegally and without color of title, or right, under and across Page avenue laid conduits or drains; and by which conduits and drains the surface waters, falling north of said Page avenue, were collected and thrown upon the said land of plaintiff.
“Plaintiff further states that the tract so owned and possessed by him, plaintiff, was, at the time of laying said conduits and drains, cultivated land, and by reason of the said surface waters being so thrown upon it was ruined, for the purpose of cultivation, turned
The answer thereto was a general denial. At the trial it was agreed that the following facts should be taken as proved by the plaintiff: “That the plaintiff was at the time of the institution of this suit, and for a long time previous thereto, the owner in fee simple, and in possession of the property described in the petition ; that the surface water on the land, north of the tract, in petition described, flowed eastwardly and southwardly upon said land of plaintiff; that the defendant in opening Cook or Page avenue collected all of the surface waters of a large area north, so that they were diverted along the north edge of the block, next north of plaintiff’s land, eastwardly to the western line of King’s Highway, and were then brought southwardly down to the northwest corner of King’s Highway and Cook, or Page avenue, and then turned westward on north line of Cook or Page avenue, and then by drains or conduits laid by the city under the road-bed of Cook or Page avenue, under authority of ordinances for the establishment of said streets, duly enacted, discharged on the land of plaintiff; that throwing said surface water, thus collectively on the land of plaintiff, has, to the extent of six or eight acres, turned plaintiff’s land, as described in the petition, into a morass ; and ruined it for the purpose of cultivation. And that plaintiff by the diminished rental caused by these surface waters had been damaged to the extent of two thousand dollars.”
Hpon this agreed state of facts, the court instructed the jury that the plaintiff was not entitled to recover. Plaintiff thereupon took a non-suit, with leave to move to set the same aside, and his motion in that behalf
Prom the above statement, it ap pears that plaintiff seeks to recover damages for injuries done to his land by “surface water” collected and thrown upon it by the operations of the city government, in opening and constructing Page avenue, under authority of ordinances duly enacted for that purpose. It may be well to premise, that there seems to be a manifest inconsistency and contradiction in the case made by the pleadings, and that presented by the “agreed facts,” upon which the case appears to have been submitted at the trial. The first charges that the acts complained of were done illegally and without color of title or right, and that the “surface waters” were collected and thrown upon plaintiff’s land by the conduits or drams laid under and across Page avenue; the second that said acts were done under the authority of ordinances duly enacted for the establishment of said streets or avenues, and that surface waters were collected and diverted along the north edge of the block, next north of plaintiff’s land, eastwardly to western line of King’s Highway, and then brought down southwardly to northwest corner of King’s Highway and Page avenue, and then turned westward on north line of Page avenue, and then by drains or conduits discharged on plaintiff ’ s land.
The record shows that the jury were instructed that ‘-‘upon that state of facts” plaintiff was not entitled to recover. Without more, it may be somewhat difficult, if not impossible, to tell which state of facts was meant by the court; that alleged in the petition, or that made by the “agreed facts.” In that view of the case, how are we to tell whether the court erred or not, unless we are informed what it has decided % By statute the court is forbidden to reverse a judgment,- unless it believes that error was committed against appellant, materially affecting the merits of the action. R. S.
But waiving that question, let us proceed to the consideration of the whole case. In the first place, as before stated, I may remark that it appears from the foregoing statement, that plaintiff seeks to recover damages for injury done to his land by “ surface water” collected and thrown upon it by the operations of the city government, in opening and constructing Page avenue under authority of ordinances duly enacted for that purpose. It will be noticed that it is not alleged or claimed that there was any negligence or want of care in executing the work in question ; nor is it pretended that the city authorities, in constructing said conduits or drains, went beyond the limits of said avenue. I may further add that the brief summary of facts, agreed to be taken as proved, and upon which the cause was submitted for trial, fails to show the length of Page avenue, bounding plaintiff ’ s land on the north or how many “conduits or drains” were laid under and across Page avenue; it speaks of them in the plural; but whether they are two, ten or more does not appear. Neither does it show the surface, or inclination of plaintiff’s land, except that it is lower than the land north of it, and that it contains fifteen arpents more or less. Nor does it show whether there were upon it, and. if so, or what part of it, any natural water courses, ravines or gullies calculated to drain its surface waters flowing or thrown thereon ; or that there were, or were not, any neighboring water courses, gullies or ravines near or contiguous to Page avenue, or upon plaintiff’s said fifteen arpents of land, into which the superabundant surface waters could, or might have been, conducted and carried off, without unnecessary injury to plaintiff or neighboring proprietors.
The record before us, in these particulars and perhaps others, is faulty and I think too defective for such
Indeed, it is proper here to add, in the outset, that this suit was brought and tried in the lower court, as we understand, upon the theory of the law, as then understood and held in the case of McCormick v. Railroad,
It thus appears that the only question now before us, upon the meagre facts thus presented, is the law governing the flow and change of “surface water,” as held and recognized in this state when applied as in the case at bar, to the acts of “municipal corporations,” done under authority of ordinances duly enacted for the establishment and construction of the street or avenue in question. This question has frequently been before this court, and has received a uniform answer, except as hereinafter noticed. One of the earlier, and perhaps the leading and best considered cases, is that of City of St. Louis v. Gurno,
Continuing on top page 272, this further language is used : “ Our impression is that such actions as the
Continuing on top page 275, this further language is used: “That such a distinction had been taken in all the English cases seems to be conceded. * * * The decisions in New York, Pennsylvania and Massachusetts, we have seen, are in conformity to this principle and the supreme court of the United States in Gosly v. Corporation of Georgetown,
The principles settled in Gurno v. City of St. Louis, supra, are approved in the following subsequent cases : Taylor v. City of St. Louis,
Angelí on Water Courses [7 Ed.] section 108?, page 135, treating of same subject, uses this language: “Town officers in repairing a highway may construct-drains and culverts within the limits of a highway ; and if the surface water, after flowing in them for some-distance, turns upon the land of an adjoining proprietor, no action at law lies for the damage thereby occasioned. Towns are bound to make their highways safe and convenient for travellers; and they and their officers are protected in doing it, so" long as they act within the scope of their authority, and execute the work in a reasonably proper and skilful manner, although their operations cause the surface water to flow upon the-adjacent proprietors in large quantities to their injury. Their rights are commensurate with their duties. -s One of these rights is that of keeping thetravelled path free from surface water, in such manner as the officers of the town think proper.” The same author in section 108m, page 136, uses this further language : ! ‘ So, on the other hand, the owner of land which adjoins a highway may lawfully do any acts upon his own lands to prevent surface water from coming thereon from the highway; and may stop up the mouth of a culvert built by the selectmen across the highway, for the purpose of conducting such surface water upon his land, provided he can do so without going beyond the limits of his own land.”
It is proper here to add, that this case uses other language, of which we shall speak hereafter, that has
In the case of Gannon v. Hargadon,
In Benson v. Railroad,
To the same effect is the language of Denio, C. J., in the case of Goodale v. Tuttle,
In the case of Stewart v. City of Clinton,
The adjudications and authorities, hereinbefore cited, are, I think, sufficient to show both what the “common-law” rule is, in reference to “surface water,” its flow and diversion, as well as how it has been applied, recognized and approved, both in this state, as well as others, where the same rule prevails.
As is well known, there is another rule applicable to this subject known as the “ civil-law rule,” which prevails in many of the states. These two rules, as is well known, are largely antagonistic to each other, and have occasioned not only much conflict and some confusion in the rulings of the several states, but also occasioned vacillation in the rulings of the same state. The difference between these two rules is well expressed in the case of Hoyt v. City of Hudson,
It may be said, that the views here last expressed, and herein approved, are not in exact harmony with those of Dillon’s Municipal Corporations, sections 1042, 1051 ; but it must be remembered that Judge Dillon, in his able work on municipal corporations, in said sections, but expresses the views held and recognized in the "state of Iowa and other states, adopting the rule of the civil law, on this question. Judge Dillon himself, as I understand, while on the bench of the state of Iowa in the case of Livingston v. McDonald,
I understand the theory of plaintiff’s petition and his argument in this court to be, “ that the laying of ■said conduits or drains, under and across Page avenue, is, per se, actionable regardless of negligence or want of care in their construction.” So it would be if tried or' governed by the rule of the civil law. But, as was said in Abbott v. Railroad,
The plaintiff in drawing his petition (I apprehend) failed to distinguish the difference between the civil and common law, as above indicated on this question. In his brief, he cites and relies on the case of McCormick
In that portion of the above paragraph, which I have here italicised and put in quotation marks, there may be, perhaps, an inadvertent and misleading blending of the rule of the civil law with that of the common law, touching the flow of surface water. That part of the paragraph thus italicised, as I understand it, is, I think, misleading and liable to the construction that, the acts, there specified, are actionable per se, and the party doing them is liable in damages, regardless of the question of negligence or want of due care. That, unquestionably is the rule of the civil law. But the common law, by statute as well as by a long line of adjudication in this state, as we have seen, is declared to “be the rule of action and decision in this state, any law, custom or usage to the contrary notwithstanding.”
Whether in so doing, the company in the McCormick case, 57 Mo., supra, was liable in damages under the common-law rule, I venture to say (as was held and declared in Abbott v. Railroad,
So, in the case at bar, the city, having authority to construct said conduits or drains was, in my opinion, bound by a like duty, subject to like obligations, and exempt from like responsibility and liability, for like injuries and damages as specified in the opinion in the Abbott case, supra, and it follows, in my opinion, that the acts charged in the case at bar are not per se actionable and that the court was right in so ruling. But the doctrine from the McCormick case,
The plaintiff in his brief cites and relies on the case of McCormick v. Railroad,
This evidence offered by the defendant was objected to by plaintiff, as being immaterial and going to prove no defense to plaintiff’s action. This objection was overruled and plaintiff excepted. The plaintiff at the close of the evidence asked the court to give (among others ) the following instruction : “ The court instructs the jury that if they believe from the evidence that defendant collected a large body of surface water on the east side of its railroad, by the embankment of said road as charged in plaintiff’s petition, and that sometime in June of 1871, or about that time, charged in plaintiff’s petition, said defendant by an artificial channel, through said embankment, negligently and carelessly drained said body of water onto plaintiff’s land, then plaintiff is entitled to recover what damage he has suffered, as shown by the evidence.” All of which the court refused and plaintiff excepted. The plaintiff then
Upon this state of the case, the court held that, “the only question presented for the consideration of this court, by the record in the case, grew out of the action of the circuit court in giving and refusing instructions, asked by the respective parties ; for if the instructions given on the part of defendant were properly given, evidence objected to by plaintiff was properly received. ” The instructions given for defendant, I have not deemed it necessary here to set out, as the case was made to turn upon the refusal of plaintiff ’ s said instruction, above set out. The court then remarked, that “the first instruction asked by plaintiff told the jury in effect, that if the plaintiff did the act charged in the petition, in the manner therein charged, plaintiff had a right to recover. ” The court then adds: “We think this instruction ought to have been given. ” And its refusal was held to be error, for which the judgment was reversed and the cause remanded for a new trial, etc.
In the passages last above quoted, from 57 Mo., p. 438, there is, 1 think, an unfortunate blending of the civil and common-law rules, pertaining to the subject that has lead to some misapprehension as to what the learned judge, delivering that opinion, really meant thereby. The learned judge who decided the case when it came the second time for review, in 70 Mo., supra, thus interprets its meaning and origin, by the use of the following language : ‘ ‘ When this case was here in 1874 (
This passage is, • I think, borrowed from the civil law and inadvertently, perhaps, deemed a part of the common law. To this extent only, in my opinion, is the interpretation placed upon it, by 70 Mo., supra, correct. All the balance of what is stated on the subject in 57 Mo., supra, is clearly common law and not civil law. The passage above quoted from 57 Mo., supra, p. 438, as I understand it, declares that the acts there charged are actionable per se, regardless of negligence or the want of ordinary care. If tried by the rule of the civil law, that is true; but if tried by the rule of the common law, its actionability in my opinion depends upon whether, under all the circumstances, the party thus collecting and discharging the waters in question, in so doing had due regard to the safety and security of the road-bed and the right of the adjoining proprietor, so as to inflict no unnecessary injury thereby. The rule being, as I understand, that when the party is authorized by law to do the act in question, he is only liable
So, in laying the conduits and drains under and across Page Avenue, complained of in the case at bar, it is, we think, impossible to declare, as matter of law, that the city was liable in damages, without a due consideration of all the facts and circumstances necessary to be shown and considered with reference thereto, none of which, in my opinion, are sufficiently stated and charged in the petition. I am, therefore, of opinion that the trial court committed no error in instructing the jury, that the plaintiff was not entitled to recover.
In conclusion I may add, that I greatly fear, if I correctly understand the scope and bearing of the majority opinion, that it will go far to shake all confidence in, if not absolutely unsettle, an important question of great public interest, that had been supposed to have been permantly set at rest in this state by the later adjudications of our courts. Hoester v. Hemsath,
If I mistake not, it will greatly cripple and embarrass the enterprise and operations of all municipal and other corporations, as well as that larger interest of agricultural development everywhere on the increase, and of the greatest interest to the whole country. To illustrate: A railroad embankment is constructed across low lands, between neighboring elevations in the
To illustrate again : The same impracticable and unsurmountable difficulties must necessarily obstruct and render futile any system of drainage among adjoining proprietors in all agricultural and farming districts in the whole country, if the principle underlying the majority opinion prevails. So too, of all cities, towns and villages. Such a rule is manifestly impracticable, and surely cannot be the law. The true rule is that of the common law as herein explained, and heretofore unanimously approved in Abbott v. Railroad, supra, and also in Hoester v. Hemsath, supra.
We may also further add, that the authority of the case of Pettigrew v. Evansville,