Adams v. Oklahoma City

1908 OK 39, 95 P. 975, 20 Okla. 519, 1907 Okla. LEXIS 54

• Court: Supreme Court of Oklahoma
• Decided: March 19, 1908
• Docket: No. 1843, Okla. T.
• Status: Published

Opinion

Williams, C. J.

(after stating the facts as above). The defendant in plaintiff’s petition is not charged with negligence, nor does the evidence tend to show such, in the construction or grading of the street; neither is there any claim that it intentionally collected the water in a body, or by drains or sewers threw it upon the premises of the plaintiff. The only question necessary to determine in this case is: Can the city, in first establishing a grade, and accordingly grading the street, obstruct the flow of surface water without incurring liability, where there is no allegation or contention of any negligence in the establishment or grading of such street? Section 443, vol. 1, Wilson’s Eev. & Ann. St. 1903, is as follows:

“The mayor and council of cities of the first class of this territory, having a population of more than three thousand, as shown by the last territorial or federal census, are hereby empowered to establish and change the grade of all streets, avenues, lanes, alleys and other public places, provided that any change of a permanent, established grade shall not be made without making due compensation to the owners of abutting property having permanent improvements erected thereon with reference to the previously established grade.”

This is the latest enactment giving cities of the first class the right to establish and change grades of all streets. The plaintiff in her brief states as follows:

“It may be that we fail to show in the evidence that this was a change of grade from one once established; but nevertheless the other facts alleged in the petition show a diversion of this water from its natural com by which it was thrown over the portions of the lots of Mrs. Axlams and about her buildings, where it had .never run before, and damaged her thereby.”

The decision of this case necessarily depends upon the construction of the words ^provided that any change of a permanent, established grade shall not be made without due compensation to the owners of abutting property having permanent improvements erected thereon with reference to the previously established grade.” It is often found difficult to limit tlie language in the enacting clause, so as to admit every exception, and limitation designed to be introduced into such act in- its finished state. Hence the utility of the proviso, which is to be construed in connection with the section of which it forms a part, and is substantially an exception, and is not to apply to others unless primarily intended to. In other words, the proviso will be so restricted, in the absence of anything in its terms, or the subject dealt with, evincing the intention of giving it a broader effect. Its proper function being to-limit the language of the Legislature, it will not be deemed intended from doubtful words to enlarge or extend the act or the provision-in which it is engrafted, .when it follows and restricts an enacting clause. Generally in its purpose and language it is to be strictly construed and limited to subjects fairly within its terms. "E'xpressio unius esi exclusio ailterius!’ This is a complete statute. It authorizes the city to establish grades, and also, after having established same, to make changes therein, providing at the same time for compensation to property owners where the city, after having established a permanent grade, changes the same. It especially refrains from providing compensation to property owners from any damage sustained from the original establishment of a grade.

There is good reason for the policy that cities should not be liable for damages occasioned in the first establishment of grades. It would discourage public improvements if an entire section of a city were allowed to recover damages from the municipal government for injuries resulting to abutting or adjacent lots on account of grades, first established. Cities are built upon tracts of land irrespective of the existing natural conditions; some parts upon elevation, others upo,n depressions. These must be made to subserve the demands for necessary city improvements. By no other rule or policy could cities reasonably be built with a view to the construction of streets for the necessary travel and the placing of sewerage for the preservation of health, thereby promoting the public comfort and convenience. Elevations must be leveled, and lowlands and depressions raised. Buildings first constructed are erected with an understanding that a change in the physical conditions must take place for the benefit of the entire community. A building is placed upon a hill with a reasonable expectancy that a street is .to be cut there, and that such building will in all probability be above the grade when established; and one is put upon a draw or lowland with the reasonable apprehension that a street will be graded and filled, being raised at least to a grade far above its level. These are the inevitable incidents of improvement, development, and progress. Otherwise no cities could reasonably be built. There would be no boulevards, no parks, no broad streets paved and provided with commensurate sidewalks for the convenience of the public, whether pedestrains, equestrians, or by vehiculation, steam, or electricity; for bankruptcy would overtake the city in its first growth. With any other interpretation in this country there could be no material development or improvement in our cities as to streets and thoroughfares; but we would have narrow irregular streets like those of the Spanish-American countries, without any regard to' grade or surface. Nor is the right of the individual morally encroached upon by such a policy, though “private interest must yield to public accommodation.” With the grading of streets, the laying of sewerage and water pipes, the cutting down of hills and filling up of hollows, and the beautifying of cities, there is corresponding increase of value as to space and area. The party having such property, by raising the grade of the lot to that of the street, the value of the same, as a rule, is proportionately increased to amply compensate for all costs in the grading thereof. The values of lots and realty in cities keep corresponding pace with its growth and development, and an outlay for grading of lots to conform to the streets is usually followed by such increment of value as to work no hardship. Smith v. Corporation of Washington City, 30 How. (U. S.) 146, 15 L. Ed. 858; Davis v. County Commissioners, 153 Mass. 218, 36 N. E. 848, 11 L. R. A. 750; Alden v. City of Minneapolis, 24 Minn. 262.

Municipalities are agencies of the commonwealth, created by the sovereignty of the people.

“A Legislature may and often does authorize, and even direct, acts to be done which are harmful to individuals, and which without the authority would be nuisances; but in such a case, if the statute be such as the Legislature has power to pass, the acts are lawful, and are not nuisances, unless the power has been exceeded. In such grants of power a right to compensation for consequential injuries caused by. the authorized erections may be given to those who suffer; but then the right is the creature of the statute. It has no existence without it.” (Transportation Co. v. Chicago, 99 U. S. 640, 25 L. Ed. 336.)

In the case of Field v. Township of West Orange, 36 N. J. Eq. 119, the court says:

‘¡‘Where damage is done that way by grading the streets under competent authority, there is no responsibility to the injured party.”

In the case of Field v. West Orange, 46 N. J. Eq. 183, 2 Atl. 236, the court says:

“The Supreme Court ha's, however, held that where damage results to an individual from the discharge of surface water upon his land, in consequence of a proper power delegated to a municipality to make and grade highways, no legal liability exists.”

In the case of Inhabitants of West Orange v. Field, 37 N. J. Eq. 601, 45 Am. Rep. 670, the court said:

‘■‘As stated in that case (Durkes v. Town of Union, 38 N. J. Law, 21), the authorities are quite uniform in holding that no responsibility attaches for damage done by the diversion of surface water by the public authorities, where the diversion is merely incidental to and occasioned by the making or altering of street grades.”

In the case of Alden v. City of Minneapolis, 24 Minn. 262, “there was a natural depression from all si<h and “a pond” was formed by the accumulation of surface water, with no outlet, and the court says:

“It had the right, as was its duty, to fix the grades of its streets and improve them accordingly, and wholly with reference to the public use and accommodation, and no right of action could accrue against it by reason of any consequential injuries resulting necessarity from the proper execution of this power. Lee v. City of Minneapolis, 22 Minn. 13. It was under no obligation, in establishing such grades and making such improvements, to conform them to the special necessities and requirements of plaintiff’s abutting property, for the purpose of draining it or preventing the accumulation upon it of mere surface waters. Its clear duty to the public required, as was done in this instance, the elevation of the grades of Nicollet and Third streets, through this low place of ground to such a height and level above its natural surface as would make them fit and suitable for public use and travel, by keeping them properly drained of such surface waters as usually' collected in that locality'. If thereby plaintiff’s lot veas necessarily overflowed during heavy rains, to his injury, it was the misfortune of his situation in occupying premises thus naturally low, and his loss, if any', was damnum absque injuria. He had no legal claim upon the city for the construction of any sewer, to serve either as a drain to his premises or as an additional relief to the streets themselves; and hence the omission to build the Hennepin avenue sewer furnished him no just ground for complaint. His proper, if not sole, protection consisted in raising his own lot above the grade line of the street, or in the erection of such walls and embankments as would hgve effectually prevented any flow upon him from the street. This he could lawfully have done, as he possessed the common-law right of use and enjoyment, in respect to his lot, as fully and to the same extent as the city did in respect to its streets. Each had the right to use and improve, for any' legitimate purpose, and in such manner as would protect against the incursion or accumulation of mere surface water. Barry v. City of Lowell, 8 Allen (Mass.) 127, 85 Am. Dec. 692; Franklin v. Fisk, 13 Allen (Mass.) 211, 90 Am. Dec. 194; Turner v. Dartmouth, 13 Allen (Mass.) 291; Flagg v. Worcester, 13 Gray (Mass.) 601; Wilson v. Mayor, 1 Denio (N. Y.) 595, 43 Am. Dec. 719; Mills v. Brooklyn, 32 N. Y. 489; Imler v. Springfield, 55 Mo. 119, 17 Am. Rep. 645; Hoyt v. City of Hudson, 27 Wis. 656, 9 Am. Rep. 473.”

In the case of Stewart v. City of Clinton, 79 Mo. 613, the court says:

“It is assumed by the plaintiff that it was the duty of the city to keep a drain or gutter open while the work was being done, so as to prevent the flow of the surface water of the street in and upon the plaintiff’s premises, and that this was negligently permitted by the defendant.”

It was held that no such duty devolved upon the defendant, citing with approval Dillon on Munic. Corp. § 799:

“Even where the work of grading the streets is entered upon, there is not ordinarily, if ever, any liability to the adjoining owner growing merely from the nonaction of the corporation in not providing for keeping surface water from property situate below the established grade of the street. The surface flow of the water along the street came in contact with the mouth of the pipe connecting plaintiff’s cellar with the street, and thereby ran into the. cellar. This is no more than to say that when defendant altered the grade of its streets it became its duty to provide ditches or other conduits for the surface water flowing along the street, so as to prevent it from running into plaintiff’s cellar, the ser-vient property; and this, too, when the water found its way into hiss cellar by means of an artificial passway which he had constructed from his private property to the public street. This injury he could easily have prevented by closing up his pipes and providing other means of escape for water accumulating in his cellar otherwise than from the graded street. When he thus appropriated, uninvited, the public thoroughfare for an easement to drain his cellar upon, he did so subject to the paramount right of the municipality to change the grade of this highway to suit the public convenience, to.which it was primarily dedicated.”

In the case of Freburg v. City of Davenport, 63 Iowa, 119, 18 N. W. 707, 50 Am. Rep. 707, the court, citing 2 Dillon on Municipal Corporations (3d Ed.) §§ 1051, 1044, 1043, 1042, and 1041, says:

“But since surface water is a common enemy, which the lot owner may fight by raising his lot to grade or in any other proper manner, and since the municipality has the undoubted right to bring its streets to grade, and has as much power to fight surface water in its streets as the adjoining private owner, it is not ordinarily, if ever, liable for simply failing to provide culverts or gutters adequate to keep surface water off from adjoining lots beloiv grade, particularly if the injury would not have occurred had the lots been filled up so as to have been on a level with the street.”

In the case of Morris v. City of Council Bluffs, 67 Iowa, 343, 25 N. W. 274, 56 Am. Rep. 343, the principle is laid down that the owner of a lot below grade must take notice of any exposure created by bringing a street to grade, and must exercise reasonable diligence to protect himself from injury by an overflow of water by bringing his lot to grade.

In the case of Bronson v. Borough of Wallingford, 54 Conn. 513, 9 Atl. 394, the court says:

“The intent charged wé consider as an intent simply to change the grade, and not a malicious intent to injure the plaintiff. Surface water must be turned from the roadbed into drains and gutters, and at all times will flow in considerable quantity. It would be practically impossible for towns, cities, and boroughs in most cases to prevent such water from flowing onto the land of adjoining proprietors.”

In the case of Aicher v. City of Denver, 10 Colo. App. 413, 52 Pac. 87, there being what was termed a gulch or drain involved, and the facts being quite similar to this case, the court held:

. “Where one erects improvements on land which is below the grade which the city authorities established, the failure of such authorities to provide for disposition of surface waters does not, as a rule, impose any liability on the city.”

In the case of Jordan v. Benwood, 42 W. Va. 312, 26 S. E. 266, 36 L. R. A. 519, 57 Am. St. Rep. 859, there being a drain involved, and the facts similar to this case, the court held:

■“A city is not liable for damages to a lot owner because change of grade of a street prevents surface water of the lot from flowing off. It is not different, even if the surface water is, by reason of such change of grade, increased in quantity on the lot, if not cast in a mass or body on the premises. Nor is a city liable for mere surface water flowing from a street upon an adjoining lot.”

See, also, Dudley v. Buffalo, 73 Minn. 347, 76 N. W. 44; Flagg v. Worcester, 13 Gray (Mass.) 601; Carll v. Northport, 11 App. Div. 120, 42 N. Y. Supp. 576; Corcoran v. City of Benicia, 96 Cal. 1, 30 Pac. 798, 31 Am. St. Rep. 171; Rychlicki v. City of St. Louis, 98 Mo. 497, 11 S. W. 1001, 4 L. R. A. 594, 14 Am. St. Rep. 651; Imler v. Springfield, 55 Mo. 119, 17 Am. Rep. 645; Stewart v. City of Clinton, 79 Mo. 612; St. Louis v. Gurno, 12 Mo. 414; Miller v. Mayor of Morristown, 47 N. J. Eq. 62, 20 Atl. 61; Durkes v. Town of Union, 38 N. J. Law, 21; Lynch v. Dew York, 76 N. Y. 60, 32 Am. Rep. 271; Rutherford v. Village of Holley, 105 N. Y. 632, 11 N. E. 818; Wakefield v. Newell, 12 R. I. 75, 34 Am. Rep. 598; Yeager v. Fairmont, 43 W. Va. 259, 27 S. E. 234; Jorden v. Benwood, 42 W. Va. 312, 26 S. E. 266, 36 L. R. A. 519, 57 Am. St. Rep. 859; Roll v. Augusta, 34 Ga. 326; Bronson v. Wallingford, 54 Conn. 513, 9 Atl. 393; Clark v. City of Wilmington, 5 Har. (Del.) 244; Turner v. Dartmouth, 13 Allen (Mass.) 291; Emery v. Lowell, 104 Mass. 13; Hubbard v. Webster, 118 Mass. 599; Keith v. Brockton, 136 Mass. 119; Gannon v. Hargadon, 10 Allen (Mass.) 106, 87 Am. Dec. 625; Alden v. Minneapolis, 24 Minn. 262.

In making the improvements complained of, the city as agent of the sovereignty was performing a public duty authorized by law, and. obviously, so long as it was done with care and skill, there can be recovery for consequential damages only when authorized by statute. In this case there is neither any allegation in the pleadings nor contention in the proof of any negligence on the part of the city. The case of Chicago, Rock Island & Pacific Ry. Co. v. Groves, ante, this volume, 93 Pac. 755, is not applicable to the facts in this case. Even if it were, the drain or draw as shown in this record would not be termed a “waterway” or “water course” under the rule therein announced. There is nothing to show that the draw existed prior to the extension of the city limits over this area. But it does appear that this draw, drain or ditch, as you may term it, changed its base, or had been changed by the proprietors, as improvements were made by such adjacent proprietors. A surface water channel or waterway must have some long prior existence, so as to show that it existed from permanent natural causes and not from changes made incident to the conditions of a city, before it can come within the rule of that case.

We conclude that it was the intention of the Legislature in section 443, Wilson’s Rev. & Ann. St. 1903, to provide for compensation only for owners of abutting property having permanent improvements erected thereon, where change was made in a permanent grade previously established by lawful authority; and. compensation not being provided for such proprietors where the establishment of the original or first grades are made by such authority, the plaintiff was not entitled to recover in this case.

Judgment of the court below is affirmed.

All the Justices concur.