Niles' Works v. City of Cincinnati

2 Disney (Ohio) 400

• Court: Ohio Superior Court, Cincinnati
• Decided: November 15, 1858
• Docket: No. 9,132
• Status: Published

Opinion

Gholson, J.,

charged the jury as follows;

This action was brought by the plaintiff to recover for au injury sustained by the falling down of a building occupied as a foundry, the consequent destruction of property, and an interruption to business.

The plaintiff had a lease upon the lot and building for tea years, and was bound to keep the building in repair. The costs of such repairs, if the verdict was for the plaintiff, together with the injury to its personal property, and inconvenience to its business, would be proper matters to be taken into consideration in assessing the damages.

The defendant denied any liability whatever for the injury of which the plaintiff complained.

It appears from the pleadings and evidence, that in early times there ran through the limits of the city of Cincinnati a natural water-course, known as Deer Creek.

The right of any proprietor of lots of land, through which this water-course ran, was to make such use of the water, and to erect such structures over the stream, as would not interfere with the rights of the owners above or below. If a portion of the city through which the stream runs was subdivided into lots, and streets were laid out and dedicated, running to or across the natural water-course, a right to thq use of the streets in connection with the water-course, for the discharge of water from the lots fronting on the streets would be created.

Persons who might afterward become possessed of the lots through which the water-course passed, would hold them subject to the right to the use of the streets for the discharge of the water.

If the owner of a lot through which the water-course flowed in its natural channel, should choose to substitute an artificial one, it would be his duty to see that it was sufficient for all the purposes of the natural one. When such an artificial channel is constructed by one proprietor, he must take care that he does not prevent the accustomed flow of the water in the natural channel from above, or injuriously increase it, or change its course below.

If one proprietor, having constructed such a channel, the proprietor below desires to continue it, he may do so; but if he constructs one of an insufficient size, or in an insufficient manner, and is thereby injured, it is his own loss.

When an artificial channel for a water-course has been constructed by one proprietor, and structures connected with it are erected, upon his property, and this artificial channel is continued by a construction for the purpose, through the land of a proprietor below, whether the latter will be responsible for an injury to the former, may be a question of care and diligence.

A man has no right to change the channel of a watercourse, by means of a sewer, and throw the water upon the land of his neighbor in a different place or direction from that in which it before flowed. If- he does, and as a matter of agreement, or for the protection of his own property, the neighbor continues the sewer, he is only bound to use ordinary care and diligence in its construction, and does not become an insurer against any injury resulting to the sewer above, or to structures connected with it, and which may be affected by its destruction.

In this case, if it appears from the evidence that a loss and injury happened on the land or premises occupied by the plaintiff, it must sustain it, unless it show affirmatively a right to place it elsewhere. This is claimed on two grounds. First, that the city, improperly and without right, increased the flow of water through the sewer from above.

Second, that the city, improperly and without right, obstructed the flow of water from the sewer through the lot of the plaintiff' from below. The city had the right, having constructed the sewer under the streets, to use it for the same purpose for which the natural water-course was subject to be used — the discharge of the water passing along the gutters in the'street. If it was used in an ordinary and proper manner for such purpose, there would be no liability on the ground of any increase in the number of buildings erected on the lots. ’The improvement of the city must be considered as having been within the contemplation of the parties at the time- of making a subdivision of lots containing a dedication of streets.

If the city had, carelessly and improperly, brought into the sewer by means of the openings in the streets, a large quantity of water, a liability might result for any injury caused to the sewer of the plaintiff, but not if the increase of the water was caused by improvements. Against the latter it would be the duty of the plaintiff' to guard, in the construction of the sewer through its property.

As to the obstruction claimed to have been caused by the continuance of the sewer, by the city, from the premises of the plaintiff through the property of Longworth, the jury would inquire first, as a question of fact, did this obstruction cause the injury complained of upon the premises of the plaintiff? This the plaintiff' must show to the satisfaction of the jury, and if it failed to do so, the jury need inquire no further as to this branch of the case.

If the jury were satisfied that the insufficiency or imperfection of the sewer, constructed by the city through the property of Longworth, caused an obstruction of the water passing through the sewer of the plaintiff', and the injury resulted therefrom, it did not necessarily follow that there was a liability on the part of the city.

The city, representing Longworth, the owner of the property, and the plaintiff, stand as the proprietors of contiguous lots of land, through or by which a natural water-course originally flowed.

The plaintiff changed, by means of an artificial channel or sewer, the course and direction of the water, and threw it upon the land of Longworth at a place, and in a manner different from what it was before.

There is evidence, tending to show some arrangement between the plaintiff', or those it represents, and Longworth, for a continuance of the sewer through his land. A sewer for this purpose was, it appears, constructed by Longworth. This was found not to answer, or was objectionable for some reason, as shown by the. evidence, but not, so far as appears, upon the ground of obstruction.

To obviate this matter, and under the circumstances shown in the evidence, to which the jury will have reference, the city undertakes the construction of a sewer from the lot occupied by the plaintiff, through the land of Longworth, to Deer Creek. Now, as between the city and the plaintiff or those whom the plaintiff represents, under the circumstances disclosed by the evidence, the city would not be absolutely liable for any defect or imperfection in the sewer, but for such a defect or imperfection as the exercise of ordinary care and diligence might have guarded against. It will be for the jury to determine, upon the evidence, and having regard to the nature and use of the structure to be made, whether the requisite care and diligence was used.

It is admitted that the thing to be constructed was one requiring skill, the failure to exert the needful skill, if not obtained, or from inattention, would he negligence. The jury will inquire whether there was want of skill on the part of those employed to plan or construct the sewer, and also whether there was an omission to use the requisite skill. If competent men were not employed, or if, under the evidence, there was failure to use that skill which works of the kind have been shown by the evidence to require, a case of negligence would be established. The city, as representing the adjoining owner of property, either under an agreement or for its own protection, had no right to act wantonly or with gross ignorance and neglect, even to guard against any flow of water proceeding from the sewer of the plaintiff. But if the city acted with good faith, and exercised proper care and diligence, such as an ordinarily prudent and careful owner of property under such circumstances would do, then there is no liability to the plaintiff’.

Verdict for defendant.

A motion for a new trial was made and overruled, and a judgment entered for the defendant, which was subsequently affirmed in general term.