Hession v. Mayor & Council

15 Del. 122

• Court: Superior Court of Delaware
• Decided: May 15, 1893
• Status: Published

Opinion

Lore, C. J.

(charging the jury.)

The plain tiff complains that the damage in this case resulted from one, or both of two causes.

First. The negligence of the city in permitting the sewer and its inlets, to be obstructed by sand, carelessly dumped on Lancaster Avenue for the purpose of paving the same, cobble stones, and other refuse, in such quantities that the rainfall was obstructed thereby and could not vent through the common outlet.

Second. Because the city, in pursuance of no general plan, but in detached portions, sometimes in the interest of private adjoining land owners, built these two sewers originally, and introduced private drains and lateral branches therein subsequently, in such manner that the common outlet was manifestly inadequate to vent the water conveyed to it.

That the city neglected to remedy the defects after it had notice thereof, which notice was given by its own engineers, by the citizens damaged, and by the repeated floodings of this particular district. That the city had knowledge of these defects for more than ten years prior to the damage in this case complained of.

The defendant on the other hand claims that the damage arose:

First. From an extraordinary rainfall or storm against which it was not bound to provide.

Second. Because the sewers, their common vent or outlet, and the inlets thereto, although built at different times, and in detached portions, were in each case built in pursuance of plans, at the time approved by the duly constituted authorities, under a giiasi-judicial or discretionary power vested in the City; and that for any damage resulting from any default or inadequacy in the plan and size of sewer, outlet or inlets thereof, or by failure of" the City to enlarge the same to meet the growing demands, no action will lie against the City, unless that discretion was exercised, wilfully and wantonly, to the damage of the person injured.

The City of Wilmington through its Street and Sewer Department, has full and exclusive power to determine the plans of streets, culverts, sewers and inlets, within its limits, and also to carry those plans into execution. The making of such plans is a giiasi-judicial or discretionary power or duty. The execution of the plans, that is the actual building of the sewer when so made, is a ministerial duty. For any fault or defect in s.uch plans, resulting in damage to the individual citizen, the City is not liable; for any fault or defect in carrying such plans into execution, the City is liable; Clark vs. the City of Wilmington, 5 Harring. 243; Mc-Garrity vs. the City of Wilmington, 5 Houst. 530; Harrigan vs. the City of Wilmington, 8 Houst. 140; s. c. 12 Atl. Rep. 779.

Keeping this primal distinction in view, you will note; that the making of the plans for the original Shipley Run and Norris Run Sewers, and their enlargement, additions and improvement, whether in whole or in part; was judicial or discretionary; that the actual execution of such plans, or the building of such sewers were ministerial duties. The keeping of sewers, when so built, in repair and cleansing the same is also a ministerial duty.

Therefore, if the evidence shows to your satisfaction, that on the 29th day of July, 1891, the said sewers, in any part, were obstructed by sand, filth and refuse, negligently permitted to be and remain there by the City, to such an extent that the water could not vent, but was dammed "up and forced back upon the premises of the plaintiff, thereby causing the damage complained of, the City is liable, and he is entitled to recover.

He would not be entitled to recover, however, even if the sewers were obstructed, if the damage would have resulted just the same, because of the extraordinary fall of rain-water, which the sewers, even if clear, could not have vented, so as to prevent the damage. In that case the damage would be the result of the severity of the storm, irrespective of the negligence of the City, even if such negligence existed.

Should you be satisfied from the evidence, that the storm of July 29th, 1891, was of such extraordinary character, or as it has been called in one of our cases by the late Chief Justice Comegys, “ phenomenal,” that the rules governing the construction of sewers to vent surface water in this latitude, did not require the City to provide for such a storm when the sewer was constructed, the plaintiff, is not entitled to recover; because the damage in that event, resulted from the act of God and not from the negligence of the City. The City cannot be held responsible for damages which it could not reasonably foresee or prevent. In determining this question, the evidence of the engineers, who have given special study to the subject of drainage, is entitled to great weight. According to their evidence, which is not contradicted, sewers in this latitude in 1891, were not built to carry off a larger rainfall than two and one-half inches per hour; that the rule now is three inches per hour. If you believe their testimony, you have an accurate gauge of what constitutes an extraordinary storm in this latitude, that is, any storm with a rainfall exceeding two and a half or three inches per hour would be an extraordinary storm, against which the City would not be bound to provide.

If the storm of July 29th, 1891, was of such an extraordinary character, and the damage resulted therefrom only, the City would not be liable. It is conceded on both sides that that storm was severe; but there is a marked conflict of testimony as to the downfall of water at different times during the continuance of the storm. This testimony you must reconcile if you can ; if you cannot so reconcile it, you should give credit to those witnesses whom you believe under all the circumstances are most entitled to your confidence and belief.

On the part of the plaintiff, it is contended, that the sewers, vent, and inlets when constructed, and after they were built, were manifestly inadequate to meet the purposes of their construction, and the increased demands made upon them by the volume of sewerage and water thrown into them, by additional private drains, and lateral branches • that of this inadequacy the City for many years had full notice from the annual reports of its engineers, the complaints of citizens on the line of the sewers, and from the frequent overfloAvs of that part of the drained district; that the City did not remedy the defect or enlarge the capacity of the sewer; and that by reason of such neglect, after such notice, the City is liable for the damage done in this case.

Upon this point there is conflict of authority, and two distinctly marked classes of cases. The one holding that11 When the exercise of the judicial or discretionary power by a municipal corporation results in a direct and physical injury to the property of an individual, which from its nature is liable to be repeated and continuous, but is remedial by change of plans and the adoption of prudential measures, the corporation is liable for such damage as occurs from the continuance of the original cause, after notice and the omission to adopt measures to remedy the evil.” This is the doctrine of the leading case of Seifert vs. the City of Brooklyn, 101 N. Y. 136. The case was decided in 1886 by the Court of Appeals of that State. The doctrine is supported more or less broadly by the text books and reports cited by the learned counsel for the plaintiff. In many of these cases the language is somewhat vague, and a distinction seems to be drawn between sewerage which is created by the City and surface water or rainwater.

On the other hand, in the leading case of Mills vs. the City of Brooklyn, 32 N. Y. 489; where the authorities of a city caused a sewer to be constructed for a locality which included the plaintiff’s premises, but which though not itself a nuisance, was insufficient to carry off the water, it was held that the city was not responsible for plaintiff’s damage occasioned by the overflow. This case, although older than the Seifert case, seems to have been very carefully considered. The opinion was delivered by Chief Justice Denio, one of the ablest judges of the State of New York, a State fertile in great lawyers. The Court there say, “ the grievance of which the plaintiff’s complain, is that sufficient sewerage to carry off the surface water from their lot and house has not been provided. A sewer of a certain capacity was built, but it was insufficient to carry off all the water which came down in a rainstorm, and the plaintiff’s premises were to a certain extent unprotected. But it is not the law that a municipal corporation is responsible in a private action for not providing sufficient sewerage for every or for any part of a city or village. The duty of draining the streets or avenues of a city or village, is one requiring the exercise of deliberation, judgment, and discretion. It cannot in the nature of things, be so executed that in every single moment, every square foot of the surface shall be perfectly protected against the water falling from the clouds upon it. This duty is not in a technical sense a judicial one, for it does not concern the administration of justice between citizens; but it is of a judicial nature, for it requires the same qualities of deliberation and judgment. It admits of a choice of means, and the determination of the order of time in which improvements shall be made. It involves also a variety of prudential considerations relating to the burdens which may be discreetly imposed at a certain time, and the preference which one locality may claim over another. If the owner of property may prosecute the corporation on the ground that sufficient sewerage has not been provided for his premises, all these questions must be determined by a jury, and thus the judgment which the law has committed to the City Council, or to an administrative board, will have to be exercised by that judicial tribunal. The court and jury will have to act upon a partial view of the question for it would be impossible that all the varied considerations which may bear upon ■ it could be brought to their attention in the course of a single trial. Such a system of law would be as vexatious in practice as it is unwarranted in law.”

This opinion of Chief Justice Denio strikes us as containing better law and more consonant with reason and principle, than that of Chief Justice Huger in Seifert vs. the City of Brooklyn. It is also sustained by the case of Carr vs. Northern Liberties, 35 Pa. 324; by Johnson vs. Dist. Columbia, 118 U. S. 19; and many other authorities cited by the counsel for the defendant. The authorities all agree, that municipal corporations are exempt from liability, for damages resulting to private individuals, from the bona fide exercise of the gitasi-judicial or discretionary power in locating and planning sewers. The doctrine which would make the City liable for inadequacy of sewers and failure to remedy the same, is therefore a departure from that principle, and in the line of relief from what seemed to be great hardship in many individual cases, a new movement in the nature of equitable relief against what theretofore had been well settled law.

Adjudged cases likewise agree, that in the location, time of construction, and plans of sewers in the first instance, the City acting in good faith, and within its quasi-]udicial power and discretion, will not be liable for any private damage that may ensue. If this be so, by what reason can the conclusion be reached, that the City should be held liable, when its acts in like good faith and within like discretion in the plans for and the time of the alteration and enlargement of such sewers.

Can it be any more a matter of judgment and discretion, to fix the time of building, the location and plans of sewers in the first instance, than to determine the same questions as to the alteration or enlargement of sewers to meet the exigencies of a growing city ?

In the case at bar, the street and sewer department of the City of Wilmington, has in its charge all the streets, and all the sewers of the City. By it all the money appropriated for such purposes is in its discretion to be expended at such times, in such places, and on such works, as may best serve the common good. It has the whole field in view; knows the needs of each and every part, and can only reasonably exercise that discretion, when left free to do the work at the times, in the places, and upon plans in its judgment most beneficial. It might be true that the sewers in Monroe and Adams streets needed enlargement; and yet at the same time it might be equally true that other parts of the City had greater needs of such work and that the public good would be be best promoted by using the money available elsewhere. Other portions of the City also might reasonably demand of the department a ratable expenditure of public money for their benefit and for even such facilities as have already been given to the owners of property upon the sewers in question before further outlay should be made upon such sewers.

If therefore, a private citizen who has been damaged by the failure of the City to remedy the inadequacy of sewers upon notice of such inadequacy, may by action compel the City to expend public money for the benefit of his particular locality, when in the discretion of the department it should be expended elsewhere, we should substitute the verdict' of a jury, for the judicial discretion of the department, and thus virtually destroy such discretion, and deprive the department of the very power with which it was clothed by the Legislature, to be by it used for the best interests of all the people.

It would under penalty of suit substitute the interests of one man and one locality, for the interests of the whole people and the whole City. It would substitute the verdict of a jury upon a hearing of the needs of one man and one locality, for the discretion of the street and sewer department, which hears and knows the needs of all the people and of every locality.

This line of reasoning might be carried to an almost indefinite extent, but we think it unnecessary. It must be manifest, that this doctrine is far-reaching and very dangerous; indeed subversive of the very purpose for which the Legislature granted discretionary power to the City.

It is true that in the case of Harrigan vs. the City of Wilmington already cited, Chief Justice Comegys says: “ That the plaintiff in that case would be entitled to recover, if his premises were flooded from back water, caused by the inability of the Reed Street sewer (the very sewer in question here) to vent the water poured upon the block by the Adams Street sewer, and also that which fell from the clouds upon the surface, if the City had actual or constructive notice of the insufficiency of the Reed Street sewer to promptly discharge the water sent down to it by the Adams Street sewer.”

We do not see that the question before us was raised by the facts in the Harrigan case; or that the learned Chief Justice, for whose opinions we entertain the most profound respect, had the question specifically before him for adjudication. Indeed we understand that it is admitted in the case now on trial by counsel on both sides, that the question is a new one and never before broadly and fully presented for the adjudication of the Court. We do not feel that the utterance in' the Harrigan case was intended to decide the broad question now presented and do not feel bound by the language there used to the extent claimed. If such, however, should be its intent and scope, it is inconsistent with and destructive of the doctrine laid down in the cases of Clark vs. the City of Wilmington and McGarrity vs. the City of Wilmington, heretofore cited, and with the same doctrine announced and approved in the Harrigan case itself.

Therefore we conclude that- the determination of the time and plans, for altering and enlarging sewers already built, even when known to the City to be inadequate, is as much within the discretiou of the department, as the plans, time, and place for the original building of sewers; and that no action lies for the failure of the City to remedy such inadequacy even after notice thereof, where the city has acted in good faith and not wilfully and wantonly in such failure to remedy the defect.

Much consideration has been given to this part of the case, because its gravity and importance far transcends the amount involved in this particular case, and establishes a principle which might make this department of municipal government a failure or taxation an unbearable burden.

It is one of the incidents of municipal as well as of other forms of civilized government, that the public good must take precedence over that of any one individual. That the one who suffers damage from such cause must get his only reward in the benefit to the many and in the general good of the community in which he lives. It is the penalty that he must pay for all other benefits conferred by such government. In all such cases he suffers a loss which the law fitly terms “ damnum absque injuria ” (damage without injury.)

Therefore in conclusion, gentlemen, if you believe from the testimony which has been offered in this case, that the sewers, as constructed, were sufficient to carry off the water in ordinary rainstorms, then your verdict should be for the defendant; for no principle of law is better settled than that if the fall of water be excessive or phenomenal} any damage that ensues therefrom cannot be charged to the City. You have heard the testimony given as to-the extent of the storm, the size of these sewers and those constructed elsewhere, and upon this testimony must make up your verdict.

If you are satisfied that the damage resulted from defects in the plan or the inadequacy of the sewer, although known to the city, this being within the discretion of the department, your verdict should be for the defendant.

If you believe that the damage resulted from the extraordinary storm or fall of rain against which the city was not reasonably bound to provide, your verdict should be for the defendant.

But if you believe the damage resulted from obstruction in the sewer by reason of sand, stones and other refuse which the city negligently permitted to be and remain in the sewer, or from the imperfect and unworkmanlike manner in which the work of the actual building of the sewers and connections was actually performed, your verdict should be for the plaintiff and for the amount claimed, viz., $742.25, as there is no dispute upon the amount of the damage done.

Ball, Bird and Sanborn, for plaintiff. Bradford and Vandegrift, for defendant.

It is only necessary further to say that as the plaintiff claims that the damage resulted from the negligence or default on the part of the city, the burden of proof is upon the plaintiff to show such negligence or default by a preponderance of evidence to your satisfaction. If such negligence or default, however, is shown and the city seeks to relieve itself on the ground of an extraordinary storm, the burden of proof is then on the city to show to your like satisfaction that the storm was extraordinary or phenomenal.

If the evidence on any material issue of the case be contradictory you must reconcile it it you can; if you cannot so reconcile it then you should be governed by the testimony of those witnesses who by their character, intelligence, truthfulness and opportunities of correct observation entitles them to greatest credit.

The jury disagreed.