Wallace v. City of Dallas

2 Posey 424

• Court: Texas Commission of Appeals
• Decided: July 1, 1882
• Docket: No. 1731
• Status: Published

Opinion

Opinion.— From an examination of the statement of facts we believe the following to be the case as made by the preponderance of evidence:

1. Plaintiff owned a lot upon which was situated a storehouse within the corporate limits of the city of Dallas, and which store-house was at the time of the alleged injury occupied and used for the business of merchandising by tenants of plaintiff under a lease for one year, at the price of $40 per month rent.

2. By action of the city council of Dallas, the grade of the street upon which this lot abutted was ordered to be raised. Also, a natural ditch or gully which was adjacent to the lot, and which conveyed away water, which; without said ditch or gully, would have flowed upon said lot, was ordered by the council to be filled up, and another ditch or sewer was ordered to be constructed in its stead; and these orders of the city authorities were executed.

3. When the street was graded, the grade was higher in front of plaintiff’s house than the floor of said house — at least twelve inches higher.

4. The new ditch was not as large as the old one and was not straight, but had an angle in it, and did not have as much capacity for carrying off the water, from the lands which it drained as did the old ditch.

5. On ¡¡November 4,1873, a very heavy rain fell in Dallas, and this new ditch was insufficient to carry off the water from the grounds which it drained, the consequence being that the water backed up upon plaintiff’s lot and overflowed his store-house, and caused him to sustain damage.

G. Plaintiff’s store-house would not have been overflowed, and he would not have sustained damage, if he had raised said house to the grade of the street.

1. The old ditch or gully only carried off surface or rainwater. At the head of this ditch or gully were two springs, the water from which flowed through it for a little distance, but was- absorbed in some swampy ground before it reached plaintiff’s premises.

Our conclusions of the law, as applicable to the foregoing statement of the case, are as follows: 0

1. The city of Dallas, through its corporate authorities, unquestionably had the power to raise the grade of the street. 2 Dillon on Corp„, G89 et seq.,

2. It likewise had the power to establish and change a system of drainage for the city, so as to carry off the surface water which might accumulate within the city limits, 2 Dillon on Corp., 578, n.

3. If the officers of the city, who "were charged with the duty of grading the street and constructing a new ditch or sewer, performed their duty unskilfully or negligently, they, and not the city, would be liable for injuries caused by such unskilful or negligent construction. Keller v. Corpus Christi, 50 Tex., 614; Navasota v. Pearce, 46 Tex., 525.

4. In exercising the lawful powers of causing the street grade to be raised, and a new channel to be constructed for draining the surface water, the city did not become liable for the consequential damages caused by surface water to plaintiff’s premises. 2 Dillon on Corp., p. 1040.

5. The doctrine of contributory negligence on the part of plaintiff applies in this as in other cases when the action is for damages caused by negligence. In this case plaintiff contributed to the injury sustained by him, by not raising his house to the level with the street, which, if he had done, would have prevented the damage for which he seeks a recovery. 2 Dillon on Corp., p. 1926; Thompson on Negligence, pp. 1146-1148.

No error has been committed and therefore judgment is affirmed.