City of Indianapolis v. Lawyer

38 Ind. 348
Indiana Supreme Court·Decided November 15, 1871·Published·Cited by 28 cases

Opinion

Downey, J.

The appellees sued the city. In the amended fourth paragraph of the complaint, which was the only paragraph held by the court to be sufficient, they alleged, that on the 7th day of May, 1865, they leased for a term of ten years certain real property in said city, and erected thereon a large and commodious warehouse, with steam elevators, for the purpose of storing and moving large quantities of grain or other produce; that there was by nature a free and easy drainage of said ground, and that the water falling on and flowing by or over said ground naturally had a free and easy and rapid exit and egress into Pogue’s Run, by which it was carried away; that the city of Indianapolis, the defendant, who has sole jurisdiction for the improvement and drainage of streets and building of sewers within the corporate limits of. said city, had adopted and maintained a system of sewerage and drainage, and so constructed the drains and sewers that the rain falling upon a vast extent of territory, to wit, a space of about six hundred acres, had been caused to flow down the gutter of New Jersey street, in front of plaintiffs’ property, and thence by gutters and sewers into Pogue’s Run; and that said city had thus vastly increased the volume of water naturally flowing by or over the plaintiffs’ said grounds; that notwithstanding the natural drainage and exit [350]*350and egress of said water wras free and unobstructed, and easy and rapid from said ground into Pogue’s Run, and although the city, by the system of sewerage and drainage adopted by her, has vastly increased the volume of water flowing by said ground of the plaintiffs, yet the defendant, the said city, has failed to provide a sufficient way of exit and egress for such increased volume of water; and has so negligently and unskilfully, and in such an imperfect and defective, manner, constructed and maintained the drains and sewers on said New Jersey street, and leading from the point opposite plaintiffs’ property into Pogue’s Run, to wit, by making and keeping said drains and sewers wholly insufifb cient in size and capacity to carry off the water which was compelled to pass through them, and by obstructing all other egress or exit for said water, except through said insufficient and defective sewers and drains, and by suffering and permitting said sewers and drains to remain and continue stopped up, and choked up, so as to prevent and obstruct the flow and passage of the water passing down said street, and to dam up the water, and cause the same to back and rise and stand in front of plaintiffs’ property, on New Jersey street, and above and around said property, at great depth, to wit, four feet above the grade established by said city, which was higher than the natural surface, where prior to said obstructions, so caused and permitted by the said defendant, no water stood; and that by the negligent and insufficient and defective and unskilful construction of such drains and sewers, and by wrongfully and negligently permitting and suffering such defective and insufficient drains and sewers to become and remain filled up and choked and obstructed, the said defendant had caused the water to be dammed and backed up, and to rise and stand on New Jersey street, in front of and above plaintiffs’ property, and around the same, at divers times, which could not then be particularly set forth or enumerated; but in April, 1865, the exact day whereof could not be given from memory, and no memorandum was kept, and at divers subsequent times during said summer, [351]*351the precise dates whereof could not be given, and on or about the first day of September, 1866, to flow into plaintiffs’ building as aforesaid, and into their metal-lined, water-tight sinks, the tops of which were eighteen inches above the grade established by said city; whereby large quantities of grain were injured and destroyed, at the times deposited in said sinks, for the purpose of being removed by said elevators, to wit, five thousand bushels of wheat, of the value of three dollars per bushel; and that said sinks and machinery were greatly injured and damaged, in the sum of two thousand dollars; and that they were stopped and interrupted in their business, which was large and lucrative, and thereby suffered damages in one thousand dollars, in all seven thousand dollars ; all without fault or negligence on their part contributing or adding thereto; wherefore plaintiffs demand judgment for seven thousand dollars, etc. Filed with the complaint was a bill of particulars, setting forth the items making up the aggregate of the plaintiffs’ claim.

The defendant made some preliminary motions with reference to the complaint, the overruling of which is alleged for error in this court; but the questions are not properly presented for our consideration. The overruling of a demurrer to the fourth paragraph of the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, is also assigned for error; but no notice is taken of this point in the briefs of counsel for the city, and we have not, unaided, discovered any defect in it.

The answer of the defendant was in three paragraphs; the first was a general denial of the complaint; the second was held bad on demurrer thereto by the plaintiffs, and of this there is no complaint in the assignment of errors; the third alleged, in substance, that the injuries of which the plaintiffs complained were occasioned by the sewers and culverts constructed by certain railway companies, to wit, the Union Railway Company, the Bellefontaine Railroad Company, the Indiana Central Railway Company, and the Peru and Indianapolis Railroad Company; that said railroad com[352]*352pañíes erected and constructed said culverts and sewers for their own use and convenience, and under and by virtue of the authority conferred upon them by the grant of the right of way through said city, granted by the common council of said city.

The plaintiffs replied to the third paragraph of the answer by general denial thereof; and, secondly, that before the happening of the grievances mentioned in the complaint, the city had adopted the sewers, drains, and culverts in question, as a part of its system of drainage, with a knowledge of their insufficiency, etc.

The cause was submitted to a jury for trial, when, after the evidence of the plaintiffs was concluded, the defendant demurred thereto, and the plaintiffs joined in the demurrer. The jury thereupon assessed the plaintiffs’ damages, conditionally, at six thousand five hundred and ninety-nine dollars and thirty-eight cents. They also answered a great number of minute interrogatories relating to the particulars of the damages, which we need not further notice in this place.

The demurrer to the evidence, having been submitted, was overruled by the court, and the evidence was held sufficient to sustain the action. The plaintiffs, before the decision on the demurrer, remitted four hundred and eighty dollars of the amount of the verdict, which was allowed by the jury on account of the flood of September, 1866.

The defendant moved the court to grant a new trial, for the reasons following:

1. The court erred in admitting evidence of Mac Arthur concerning the proceedings of the common council. 2. The court erred in admitting the evidence of Davis and Cottrell concerning the proceedings of the common council. 3. The verdict of the jury is contrary to law. 4. Excessive damages. 5. Error in the assessment of damages, in this, that the damages allowed plaintiffs are too great. 6.

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City of Indianapolis v. Lawyer, 38 Ind. 348 (Ind. 1871).

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