116 Va. 205 | Va. | 1914
delivered the opinion of the court.
This action was brought to recover damages for the alleged negligent failure of the city of Richmond to furnish the plaintiff with a sufficient supply of water for domestic and sanitary purposes. The defendant interposed a demurrer to the evidence, which the court sustained, and to that judgment this writ of error was granted.
In December, 1906, the city of Richmond annexed a large area of territory in which Temple street, on which the plaintiff resides, is located. The water department at great expense laid water mains along Temple street for the convenience of citizens in that locality, even before the street had been graded. In December, 1911, after the system Was installed, the board of health notified the plaintiff to connect his premises with the water main and sewer pipes, which he did in January, 1912. Experience showed that while the pressure was sufficient to supply the plaintiff with water on the first floor of his dwelling, the quantity of water on the second floor was insufficient to flush his closet, and the original supply was so diminished from time to time as other buildings were connected with the main, that in about one month he got no water at all for his bath room. He thereupon reported.these facts to the authorities and suggested that his premises be connected with a stand-pipe intended to supply water to the inhabitants of an adjoining district, but his request was not immediately granted, the authorities assigning as the reason for their refusal that the district Was growing so fast that the proposed diversion of water would render the supply inadequate for those the stand-pipe was originally intended to serve.
It is apparent from the foregoing summary of the evidence that if we should sustain a recovery in this case it would rest solely upon the theory that the city had rendered itself liable in damages for the negligent adoption of a system of water supply for the section of the newly acquired territory wherein the plaintiff resides. That there can be no such liability under the circumstances of this case is very clear. The adoption of a plan for supplying a city, or a given section of it, with water involves the exercise of a delegated governmental power; and an error of judgment with respect to the efficiency and adequacy of such system is not in the first instance reviewable by the courts.
On the other hand, it is equally well settled that the city is liable, in a proper case, for the negligent acts and omissions of its officers in relation to the performance of such ministerial corporate duties as may be imposed upon it by law. This line of demarcation between the non-liability and liability of a municipal corporation for official negligence is well recognized by the authorities, including the decisions of this court.
Thus, in Terry v. Richmond, 94 Va. 537, 27 S. E. 429, 38 L. R. A. 834, Judge Riely, upon a review of the earlier decisions, at page 544, et seq., observes: “A num
We have quoted at some length from Judge Riely’s opinion for the reason that the principles involved are lucidly stated, and have been consistently followed by this court in subsequent decisions, and also because they are conclusive of the present controversy.
In the light of the opinion of Mr. Justice Gray, in Johnston v. District of Columbia, 118 U. S. 19, 6 Sup. Ct. 923, 30 L. Ed. 75, there can be no difficulty in appropriately classifying the case in judgment. At pages- 20-21,
Judge Dillon, in the last edition of his work on Municipal Corporations, after laying down the general principle above set forth, observes: “We now add that the later cases tend strongly to establish, and may, we think, be said to establish, and in our judgment rightly establish, that a city may be liable on the ground of negligence in respect of public sewers, solely constructed and controlled by it, When by reason of their insufficient size, clearly demonstrated by experience, they result under ordinary conditions in overflowing the private property of adjoining or connecting owners with sewage, and that the principle of exemption from liability for defect or want of efficiency of plan does not . . . extend to such a case.” 4 Dillon Mun. Corp., sec. 1739.
This very important qualification to the non-liability doctrine is founded upon common sense and considerations of sound policy and accords with the trend of modern thought and decision.
As we have seen, the municipality in devising plans and systems for supplying the public with water, sewerage and the like, exercises legislative duties involving the use of judgment and discretion, and it ought not to be held liable to civil actions for defects or want of efficiency of plans, at least during the formative or experi
The author (Judge Dillon) in notes to section 1739, and subsequent sections cites numerous cases to sustain the text.
In the instant case, the city with commendable promptitude took the necessary steps to furnish the plaintiff and other citizens similarly situated with additional water facilities after experience had shown the insufficiency of the original supply; and there has been nothing in connection with the discharge of its duty in that regard to subject it to a suit for damages.
We are told in the second and third assignments of error that the judgment complained of deprived the plaintiff of his property without due process of law and denied him the equal protection of the law, in violation of the fourteenth amendment of the Constitution of the United States and section 11, Art. I, of the Virginia Constitution; but those assignments are founded upon a misapprehension of the evidence. It is true the plaintiff expended $160.00 in installing fixtures on his premises, but of this property he has in no just sense been deprived. The fixtures have never been out of his ownership or possession, and through that medium at the date of the judgment he was utilizing and enjoying the ample supply of water furnished him by the city.
Upon the whole case, we find no error in the judgment of the Law and Equity Court of the city of Eichmond, and it must be affirmed.
Affirmed.