WALKER, J.
—The first count of the declaration alleges, that the corporation wrongfully and unjustly erected a sewer and gutter, for the purpose of conducting the water through and from certain streets ; and that the erection was made in such a careless, negligent and improper manner, that by reason thereof large quantities of water flowed upon and damaged the plaintiffs’ neighbor[130]*130ing lots. Notwithstanding there is some conflict of authority upon the subject, we think the doctrine, that a municipal corporation, in the construction of sewers, acts ministerially, and is responsible for damages caused by the careless and negligent manner in which it discharges that duty, is consistent with reason, demanded by justice, and supported by a preponderance of authority. We therefore adopt it.—Rochester White Lead Co. v. City of Rochester, 3 Comstock, 463; Lloyd v. Mayor and Aldermen of New York, 1 Selden, 369; Delmonico v. Mayor, &c., of New York, 1 Sandf. Sup. Ct. R. 222; Mears v. Commissioners of Wilmington, 9 Iredell, 78; Mayor of New York v. Furze, 3 Hill, 612; Smoot v. Mayor of Wetumpka, 24 Ala. 112; Dargan v. Mayor and Aldermen of Mobile, 31 Ala. 469, where several cases bearing upon the question are collated. It necessarily results from the adoption by us of this doctrine, that we must approve the action of the court below in overruling the demurrer to the first count.
[2.] The court erred in overruling the demurrer to the second count of the declaration. The object of that count was the recovery of damages for the defendant’s wrongful suffering and permitting the water to flow from the sewers on the street upon the plaintiffs’ lots. If the defendant did wrongfully permit the water to flow from its sewers upon the plaintiffs’ lots, and thus cause damage, the plaintiff has a right of action. But, whether the allowing of the water to flow from the sewers upon the land of plaintiffs was wrongful, is a question of law. The facts being ascertained, it is a question of law whether it was the duty of the corporation to prevent the flow of the water upon the plaintiffs’ lots, or whether it committed a wrong upon the plaintiffs in permitting the water soto flow. It was not sufficient for the plaintiffs to aver the conclusion of law. They should have set forth the facts from which that conclusion is deducible.—McKeagg v. Collehan, 13 Ala. 828; Clay v. Dennis, 3 Ala. 375; Giles v. Williams, 3 Ala. 316; Savage & Darrington v. Walshe & Emanuel, 26 Ala. 619; Nelson v. Iverson, 24 Ala. 9.
[131]*131[3.] The third count is obnoxious to a similar objection with the second. The averment of this count is, that the defendant wrongfully and unjustly permitted the adjacent street to remain out of repair, and wrongfully and unjustly refused to repair the same, and wrongfully and unjustly suffered a large quantity of rain-water to run down the street which was out of repair, to, in, against and upon the plaintiffs’ lots, and thereby caused the plaintiffs’ brick wall to be undermined and to fall, and other specified damage to be done. This count does not attribute the damage done to the neglected condition of the street, either directly or indirectly. It does not show that the neglected condition of the street was the immediate cause of the damage, or the cause of the flow of rain down the street, to, in, against and upon the plaintiffs’ lot. It was a duty of the corporation, devolved upon it by its charter, to keep the street in repair, and the third count shows a breach of that duty; but it fails to show a right of action in the plaintiffs, as a consequence of that breach of duty, because it does not appear from the declaration that damage resulted to the plaintiffs from that breach of duty. If it were shown to have been a legal duty of the corporation to have prevented the flow of the rain-water down the street, to, in, against and upon the plaintiffs’ lots, then the plaintiffs might recover the damages caused by such flow of water. We attach no importance to the qualification of suffering the water to flow as it did, by the words “wrongfully and unjustly,” because whether the failure to prevent such flow of water was wrongful and unjust is a question of law. It is not, prima facie, the legal duty of a municipal corporation to prevent the flow of rain-water from the streets upon the adjacent lands, for the omission of which an action may be maintained. It is unquestionably a' duty, which it owes to its community, to adopt a judicious system of drainage, whereby the water falling upon the city may be conducted with as little detriment as possible. But this, like the duties of making. and enforcing proper quarantine and sanitary regulations, is a legislative duty, embraced in the general obligation to provide for the general welfare of its people, [132]*132and must be left, like other governmental powers, to tbe discretion of the corporate authorities.—Smoot v. Mayor of Wetumpka, 24 Ala. 112.
If there are any circumstances in this ease which rem der the corporation responsible for the flow of the water, and the damage done thereby, they are not shown in the count under consideration, and the demurrer should have been sustained to it.
[4.] The plaintiffs were permitted to prove that, at a regular meeting of the city council, some of the members expressed themselves as willing to repair the ravine, if the plaintiffs would give up certain wharf privileges, which they were claiming. This evidence was illegal. The motives which may have induced any member of the corporation to withhold his support from a proposition to make the repairs upon the street, was a matter wholly immaterial and irrelevant. The plaintiffs had no right to recover vindictive damages. No question of vindictive damages was involved in the case. It was competent to prove that the corporation refused, or failed, when informed of the condition of the street, to repair it. Such evidence tended to establish the fact of negligence. But the plaintiffs’ right of action in no wise depended upon the motive of the refusal to support a proposition to repair on the part of any one of its members. For tbe same reason, the court erred in admitting evidence of tbe remarks of one of the aldermen indicating the existence of unkind feelings on his part towards one of the plaintiffs. If it had been proved that every member of the council was actuated by malice, it would have been entitled to no influence whatever upon this case. The corporation can not, upon any principle known to us, be responsible for the maliee of its officers towards the plaintiffs.—Wright v. Wilcox, 19 Wendell, 343. If the Ohio cases, cited by the counsel for the appellee, assert the proposition, that a corporation is liable for the malicious motives which may have induced the members of its legislative assembly to decline tbe adoption of the resolutions or ordinances necessary to the performance of a duty imposed upon it by law, wo are not willing to follow them. The court [133]*133also erred in admitting the witness who was mayor in 1851 to prove that he would have been willing to have repaired the ravine, if plaintiffs would have given up the wharf privileges claimed by them.
[5.] It was permissible for the plaintiffs to show, that the corporation was, at a meeting of its council, informed through a report by one of its committees of the fact that some slight repairs were made upon the ravine in the street.
Free access — add to your briefcase to read the full text and ask questions with AI
WALKER, J.
—The first count of the declaration alleges, that the corporation wrongfully and unjustly erected a sewer and gutter, for the purpose of conducting the water through and from certain streets ; and that the erection was made in such a careless, negligent and improper manner, that by reason thereof large quantities of water flowed upon and damaged the plaintiffs’ neighbor[130]*130ing lots. Notwithstanding there is some conflict of authority upon the subject, we think the doctrine, that a municipal corporation, in the construction of sewers, acts ministerially, and is responsible for damages caused by the careless and negligent manner in which it discharges that duty, is consistent with reason, demanded by justice, and supported by a preponderance of authority. We therefore adopt it.—Rochester White Lead Co. v. City of Rochester, 3 Comstock, 463; Lloyd v. Mayor and Aldermen of New York, 1 Selden, 369; Delmonico v. Mayor, &c., of New York, 1 Sandf. Sup. Ct. R. 222; Mears v. Commissioners of Wilmington, 9 Iredell, 78; Mayor of New York v. Furze, 3 Hill, 612; Smoot v. Mayor of Wetumpka, 24 Ala. 112; Dargan v. Mayor and Aldermen of Mobile, 31 Ala. 469, where several cases bearing upon the question are collated. It necessarily results from the adoption by us of this doctrine, that we must approve the action of the court below in overruling the demurrer to the first count.
[2.] The court erred in overruling the demurrer to the second count of the declaration. The object of that count was the recovery of damages for the defendant’s wrongful suffering and permitting the water to flow from the sewers on the street upon the plaintiffs’ lots. If the defendant did wrongfully permit the water to flow from its sewers upon the plaintiffs’ lots, and thus cause damage, the plaintiff has a right of action. But, whether the allowing of the water to flow from the sewers upon the land of plaintiffs was wrongful, is a question of law. The facts being ascertained, it is a question of law whether it was the duty of the corporation to prevent the flow of the water upon the plaintiffs’ lots, or whether it committed a wrong upon the plaintiffs in permitting the water soto flow. It was not sufficient for the plaintiffs to aver the conclusion of law. They should have set forth the facts from which that conclusion is deducible.—McKeagg v. Collehan, 13 Ala. 828; Clay v. Dennis, 3 Ala. 375; Giles v. Williams, 3 Ala. 316; Savage & Darrington v. Walshe & Emanuel, 26 Ala. 619; Nelson v. Iverson, 24 Ala. 9.
[131]*131[3.] The third count is obnoxious to a similar objection with the second. The averment of this count is, that the defendant wrongfully and unjustly permitted the adjacent street to remain out of repair, and wrongfully and unjustly refused to repair the same, and wrongfully and unjustly suffered a large quantity of rain-water to run down the street which was out of repair, to, in, against and upon the plaintiffs’ lots, and thereby caused the plaintiffs’ brick wall to be undermined and to fall, and other specified damage to be done. This count does not attribute the damage done to the neglected condition of the street, either directly or indirectly. It does not show that the neglected condition of the street was the immediate cause of the damage, or the cause of the flow of rain down the street, to, in, against and upon the plaintiffs’ lot. It was a duty of the corporation, devolved upon it by its charter, to keep the street in repair, and the third count shows a breach of that duty; but it fails to show a right of action in the plaintiffs, as a consequence of that breach of duty, because it does not appear from the declaration that damage resulted to the plaintiffs from that breach of duty. If it were shown to have been a legal duty of the corporation to have prevented the flow of the rain-water down the street, to, in, against and upon the plaintiffs’ lots, then the plaintiffs might recover the damages caused by such flow of water. We attach no importance to the qualification of suffering the water to flow as it did, by the words “wrongfully and unjustly,” because whether the failure to prevent such flow of water was wrongful and unjust is a question of law. It is not, prima facie, the legal duty of a municipal corporation to prevent the flow of rain-water from the streets upon the adjacent lands, for the omission of which an action may be maintained. It is unquestionably a' duty, which it owes to its community, to adopt a judicious system of drainage, whereby the water falling upon the city may be conducted with as little detriment as possible. But this, like the duties of making. and enforcing proper quarantine and sanitary regulations, is a legislative duty, embraced in the general obligation to provide for the general welfare of its people, [132]*132and must be left, like other governmental powers, to tbe discretion of the corporate authorities.—Smoot v. Mayor of Wetumpka, 24 Ala. 112.
If there are any circumstances in this ease which rem der the corporation responsible for the flow of the water, and the damage done thereby, they are not shown in the count under consideration, and the demurrer should have been sustained to it.
[4.] The plaintiffs were permitted to prove that, at a regular meeting of the city council, some of the members expressed themselves as willing to repair the ravine, if the plaintiffs would give up certain wharf privileges, which they were claiming. This evidence was illegal. The motives which may have induced any member of the corporation to withhold his support from a proposition to make the repairs upon the street, was a matter wholly immaterial and irrelevant. The plaintiffs had no right to recover vindictive damages. No question of vindictive damages was involved in the case. It was competent to prove that the corporation refused, or failed, when informed of the condition of the street, to repair it. Such evidence tended to establish the fact of negligence. But the plaintiffs’ right of action in no wise depended upon the motive of the refusal to support a proposition to repair on the part of any one of its members. For tbe same reason, the court erred in admitting evidence of tbe remarks of one of the aldermen indicating the existence of unkind feelings on his part towards one of the plaintiffs. If it had been proved that every member of the council was actuated by malice, it would have been entitled to no influence whatever upon this case. The corporation can not, upon any principle known to us, be responsible for the maliee of its officers towards the plaintiffs.—Wright v. Wilcox, 19 Wendell, 343. If the Ohio cases, cited by the counsel for the appellee, assert the proposition, that a corporation is liable for the malicious motives which may have induced the members of its legislative assembly to decline tbe adoption of the resolutions or ordinances necessary to the performance of a duty imposed upon it by law, wo are not willing to follow them. The court [133]*133also erred in admitting the witness who was mayor in 1851 to prove that he would have been willing to have repaired the ravine, if plaintiffs would have given up the wharf privileges claimed by them.
[5.] It was permissible for the plaintiffs to show, that the corporation was, at a meeting of its council, informed through a report by one of its committees of the fact that some slight repairs were made upon the ravine in the street. The making of such a report to the council by the committee was a part of its proceedings, conducing to show a recognition of the street as one of the streets of the city; and, at all events, the evidence was admissible, for the purpose of showing that the corporation was informed of the character of the repair of the street, which the plaintiffs contended was totally insufficient.
[6.] The evidence conduced to show, that the wall of plaintiffs was built with a view to its capacity to resist the flow of water. The witness whose opinion was given as to the capacity of the wall to withstand the flow of water from the inside, was a practical brick-mason, and had been engaged in the construction. He was, therefore, cognizant of the facts, which affected the capacity of the wall to stand, when a stream of water flowed upon it. He was also acquainted with the premises, and knew the sources for the accumulation of a volume of water within the wall. A brick-mason, thus informed, certainly must be deemed to have more than ordinary skill in the determination of the question, whether the water flowing from the inside could wash down the wall. A brick-mason must be supposed to possess more skill in determining the strength of a brick wall than persons usually have, especially if he was employed in the construction of the wall. The authorities, we think, fully authorize the conclusion, that the opinion of the witness was admissible under the circumstances, as eomingfrom an expert.—1 Greenleaf on Evidence, § 440; McCreary v. Turk, 29 Ala. 244; Porter v. Pequonuoc Man. Co., 17 Conn. 249.
[7.] The two charges given by the court of its own motion were not excepted to until after the jury retired. There are many authorities which hold, that an exception to the [134]*134charge of the court may be taken at any'time before the jury return their verdict; but we adopt the rule that the exception must be taken before the jury leave the bar, because it is supported by respectable authorities, has been for a long time universally recognized in practice in this State, and seems to rest upon a good reason. The reason is, that the court may have, at the time of giving the charge, an opportunity “for reconsidering and explaining it more fully to the jury.”—Phelps v. Mayor, 15 Howard (U. S.) R. 160; Leigh v. Hodges, 3 Scam. 15; Hill v. Ward, 2 Gilman, (Ill.) 285; Wilson v. Owens, 7 Howard, (Miss.) 126; Life and Fire Insurance Co. v. Mechanics’ Fire Insurance Co., 7 Wend. 31. The two charges given by the court of its own motion, are, therefore, not before us for revision.
[8.] The first, second, and fourth charges given upon the plaintiffs’ request, authorize a finding by the jury upon a state of facts, which the evidence set forth in the bill of exceptions contained in the record when this case was before in this court, conduced to prove. The tendency of the evidence found in the record of this cause when previously in this court, was to show that the corporation had diverted water from its accustomed and natural flow, and so conducted it as to throw it upou the plaintiffs’ lots, making no provision for its outlet without detriment to the plaintiffs, who had thereby sustained damage. It would have involved a violation of principle, not now disputable, for the court to have assumed the reverse of those facts, and prohibited to the jury the inference of them, if there was the slightest tendency of the evidence to their establishment. This court, by its former decision in this case, authorized the application to the evidence then before it of a charge, that the jury, if crediting the testimony, should find for the defendant. We cannot affirm of that decision, that it was predicated upon an erroneous assumption of fact, for it was not the province of the court to pass upon the facts, but to leave them with all their tendencies to the arbitrament of the jury. The former decision must, therefore, be understood to assert, that no state of facts which the evidence con[135]*135duced to sliow authorized a verdict for the plaintiffs. As the evidence did conduce to show the state of facts presented in the hypothesis of the first, second and fourth charges, that decision must be understood as denying the right of recovery upon those facts, and consequently as adjudicating against the correctness of such charges.
The decision on the former appeal cannot be regarded in the light of amere dictum, but as a comprehensive adjudication, dispensing by vii’tue of its conclusive effect upon the case presented with the necessity of considering separately the questions arising upon the different aspects of the ease. It is the law of this case, whether right or wrong, and we cannot now revise it.—Matthews, Finley & Co. v. Sands, 29 Ala. 136.
The first, second and fourth charges given upon the request of the plaintiffs, are inconsistent with the decision On the former appeal, and are, therefore, erroneous.
Upon the same principle, the demurrer to the 5th count should have been sustained. The averments of that count make out the same case substantially with the hypothesis presented in the first, second and fourth charges.
So, also, the evidence on the former appeal conduced to show the facts averred in the fourth count. Upon the facts set forth in the former bill of exceptions, it would have been manifestly improper for the court to have assumed the absence of evidence with such tendency, and thus have precl tided the jury from passing on them. This (the fourth) count alleges, in substance, that Moulton street was out of repair; that it was permitted for a long time to remain out of repair; that in consequence of the streets so being and remaining out of repair, the rainwater continued to tear up, wash and carry away the soil, dirt and earth of the street, and enlarge the space thus made in length, width and depth, until finally a brick wall, erected on the plaintiffs’ line for the protection of their lots from the raid-water, was thereby undermined and washed down, and other described damage done. The right of the plaintiff to recover upon those facts depends upon the question, whether the corporation is responsible to adjacent land proprietors for injuries result[136]*136ingto their lands from the omission of the corporation to repair and keep in repair the street upon which such lands are situated. There was certainly sufficient evidence before the court on the former trial to raise that question; and the decision, that upon the evidence the plaintiffs could not recover, necessarily involves an adjudication of that question in the negative.
The court also erred in giving the third charge requested by plaintiffs. This charge, in effect, asserts the legal proposition, that the corporation, within a reasonable time after notification of the owner’s design to build upon unimproved lots, is required to prevent any flow of water, which would be detrimental to the contemplated erection. Its sequence would be, that if there was an accustomed and natural flow of water from the street upon the unimproved lot of an adjacent proprietor, that it would be the duty of the corporation to prevent it, whenever it might be notified of the design to make an erection to which such flow would be prejudicial. The imposition of that duty would require the performance, not only of such acts as would keep the streets in repair, but of such as would also improve the adjacent lots, and cure natural deficiencies in them. The corporation would thus be made the obligated conservators and improvers of private property. The duty prescribed by the charter of keeping the streets in repair does not exact the performance of such acts as are necessary to protect adjacent lands from a natural flow of water, or to cure a natural fault of such lands. It follows, that if the land proprietor makes an erection in a position to be injured by a natural and accustomed flow of the water, his damages are attributable to his own act, and not to a breach of duty by the corporation.
It may be contended, that it is a legal duty of the corporation to repair 1 he street, as a street; that if the corporation had discharged that duty, it would have diverted the water, and thus incidentally protected the plaintiffs’ property, and that the plaintiffs may therefore recover. The third charge does not raise that question ; but, if it did, we should be bound to hold, as we have done in refer[137]*137ence to tbe demurrer to the fourth count, that it was decided against the plaintiffs on the former appeal.
It is possible that the mind of the court was not directed, when the former appeal was tried, to all the points which are now pressed upon our attention, and that therefore the decision has really a wider scope than was intended. Eor that reason, we should not hesitate, in another case, where we would not be shackled by the rule which makes a decision the law of the case in which it is made, to re-examine the question involved in that decision. We forbear to do so now, because the chief-justice does not sit in this case, and whatever we might say would indicate the position of only a part of the court, and could be but an expression of our opinions upon questions not before us.
What we have said disposes of all the material points of the case, and will be sufficient to guide the court on a future trial.
The judgment of the court below is reversed, and the cause remanded.
Rice, C. J., not sitting.