Winn v. Village of Rutland

52 Vt. 481

• Court: Supreme Court of Vermont
• Decided: January 15, 1880
• Status: Published

Opinion

The opinion of the court was delivered by

Powers, J.

The declaration is in two counts. In the first, the plaintiff avers that he is the owner of a house and house-lot on Howe street in the village of Rutland, and that the defendant, being authorized to construct sewers for the accommodation and convenience of the inhabitants of the village of Rutland, so negligently constructed a sewer through his lands that by reason thereof the contents were emptied upon his premises, doing him and his property great damage. The second count charges the defendant with negligence in not keeping the sewer in repair, whereby like damages followed. At the trial the plaintiff offered proof that unfit materials were used and bad workmanship displayed in building the sewer, and that after it was constructed it was suffered to remain.a long time out of repair and in a dilapidated condition. No claim was made by the plaintiff in his declaration or proofs, that the village had incurred a liability to him, by reason of any fault in the general system of sewerage adopted, or in the plan and location selected for the sewer in question. If such had been the issue for trial, the subject-matter of several of the defendant’s requests for instructions to the jury, and much of the argument addressed to us at the hearing upon the exceptions, would merit more' extended consideration. General propositions of law, however correct in form and substance, are not to be embodied in the charge to the jury, unless involved in the cause on trial. Any other rule would work serious mischief by leading the attention of the jury to other matters than those they properly have in charge.

The charter of the village of Rutland, among other things, empowered the village to build and maintain sewers. It did not impose their construction upon the village as a duty to be performed against its will, but as a privilege to be exercised or not, at its pleasure. The correlative rights and duties of the corporation, and individuals interested in, and affected by, the exercise of the chartered power, are not to be sought for in the rules of law applicable to legislative duties, imposed upon municipal corporations, which are designed to subserve a general public good, and which devolve upon all such corporations alike, such as the building and keeping in repair of highways and bridges, public buildings, &c. In such cases no private right of action arises from negligence in the performance of the duty, unless it be specially given by statute. The municipality, as a convenient instrumentality, is charged with the exercise of a public duty for the State, and not for itself. But in the case at bar the charter was sought and accepted in order to realize expected benefits to the inhabitants of the village, and not to discharge a public governmental duty. The chartered power to act is thus proprietary in its character, conferring upon the village a valuable privilege and franchise. This privilege, however, is not granted without consideration. It carries with it an implied obligation to use the power granted in such a way as to work no unnecessary injury to persons or property affected by its exercise. In construing the charter, therefore, it is to be read as if the duty to exercise ordinary care and skill in the construction of sewers was set forth in express language ; and this duty enures to the benefit of every individual interested in its performance. Cooley Const. Lim. 247 ; Shearm. & Redf. Negl. s. 126 ; 2 Dillon Munic. Corp. s. 802 ; Brine v. Great Western Railway Co. 2 Best & S. 402; Manley v. Canal & Railway Co. 2 H. & N. 840 ; Weet v. Brockport, 16 N. Y. 161.

In acting under the chartered power, the village authorities must necessarily deliberate and adjudge upon the system or plan of the work — when to perform it and where to locate it. So far, no liability to private action is incurred for errors of judgment or want of forecast. The inauguration of a plan of sewerage, so long as it remains in mere resolution, cannot in the nature of things, work actionable injury or harm to individuals. Having devised a plan, it may be carried into execution with due care and skill, without risk of private action. The charter makes the construction of the work lawful, and (unless an action be given by statute) if the work be done in a proper manner, the chartered power is a complete bar to a claim for consequential damages to persons or property, although the same act, if done without legislative sanction, would be actionable. Salus populi suprema lex. But when the work authorized by the charter is done negligently and unskilfully, and occasions damage to individuals, it is done contrary to the import and spirit of the charter, and the donee of the power has broken the condition upon which the grant was made. • In such cases the charter cannot be invoked as a justification, for it no where sanctions a negligent exercise of the power. Herein is found the true principle upon which to ground a right of private action for consequential damages against the village for the faulty construction of the sewer in question. The village undertook for its own advantage to construct a work through the plaintiff’s land ; it assumed the duty at the same time and by virtue of the same right, to do the work with proper care and skill; it failed to discharge this duty, and thereby occasioned the damages complained of. By reason of this negligence an action arises upon common-law principles in favor of the party injured. It is the same right of action that is given to an individual suffering damage from the negligence of another in the management of his own business. Sio utere tuo ut alienum non Icedas. The doctrine is well stated by Nelson, C. J., in Bailey v. New York, 3 Hill, 531, and s. c., 2 Denio, 433, where an action was brought against the city for damages received by the careless construction of the Croton dam connected with the city waterworks. Speaking of chartered powers granted for the private advantage of the corporators, he says: “ But if the grant was for purposes of private advantage and emolument, though the public may derive a common benefit therefrom, the corporation is to be regarded quo ad hoc as a private company. It stands upon the same footing as would any individual or body of persons upon whom .the like special franchises had been conferred.” To the same effect Detroit v. Corey, 9 Mich. 165 ; Jones v. New Haven, 34 Conn. 1; Child v. Boston, 4 Allen, 41; Brine v. Railway Co. supra; Clothier v. Webster, 12 C. B. 789.

It is also settled by authority that when the municipality has constructed a work designed for the advantage of its own inhabitants, the duty rests upon it to keep it in repair ; and for negligence in this behalf the party injured thereby has his common-law action. 2 Ad. Torts, 1314.

It is argued that if the construction of the sewer, though built negligently, occasioned the plaintiff no greater damages than he would have suffered if it had not been built, the defendant would not be liable. Evidence was offered at the trial upon which this claim is founded, and 2 Dillon Munic. Corp. s. 801, is cited in support of the proposition. If this doctrine could receive any countenance whatever, it ought to appear that the damages suffered by the plaintiff before the sewer was built were'unavoidable. If he had a remedy against them of which he has been deprived by the action of the village, there is little justice in holding the village excusable for damages resulting from its act.

The case shows that the formation of the land is such that the surface water from a large section of the village naturally runs through a culvert under the railroad southerly down a small natural watercourse through the plaintiff’s lands and lands below, to Bast Creek. In this condition of things, the plaintiff was exposed to damage from water, at times of heavy, rainfall and the sudden melting of snow, as the residents above him were under no obligation to keep upon their own premises the surface water deposited there by natural causes. But against such damage he had the natural right of self-defense ; he could protect his premises by turning away the water in any manner most serviceable to himself and not injurious to others. The damage he suffered from a flooding of his premises with surface water was quite different in kind and amount from damage occasioned by emptying the sewerage of a thickly inhabited portion of the village into his cellar. In 1869, the village trustees laid a sewer above said culvert, into which they collected the surface water and sewage of the same locality, and delivered the same through said culvert, whence it ran down the watercourse through the plaintiff’s lands as the surface water had been accustomed to run before. It is not claimed that the residents of the upper locality had acquired any easement in the plaintiff’s lands for the discharge of house drainage. They had no such right. They were bound to take care of their own house drainage ; and had no more right to empty it upon the plaintiff’s lands than they would have to pile rubbish there. The plaintiff had the right to prevent its coming upon his lands. Nor had the village authorities any right to make the lands of the plaintiff a place of deposit for the sewage of the village, creating there a cesspool and nuisance, and endangering the lives of the plaintiff and his family, without first making compensation therefor. Such use of the plaintiff’s lands amounts to a talcing of his land within the purview of the constitutional requirement that compensation shall be made. Eaton v. Railroad Co. 51 N. H. 504; Inman v. Tripp, 11 R. I. 520 ; Nevins v. Peoria, 41 Ill. 502 ; Pettigrew v. Evansville, 25 Wis. 223 ; Ashley v. Port Huron, 15 Alb. Law Jour. 81 ; Pumpelly v. Green Bay Co. 13 Wal. 166 ; O'Brien v. St. Paul, 18 Minn. 176 ; Columbus v. Woolen Mills Co. 33 Ind. 435 ; 2 Ad. Torts, 1314. Judge Cooley in Ashley v. Port Huron lays down the rule that a municipal corporation is responsible, like an individual, where it invades private property, and that if it discharges its sewers upon private property, it is answerable in damages, and that the flooding of private property is as much a taking of it as any other appropriation would be. The Supreme Court of the United States say, in Pumpelly v. Green Bay Co., that “when the real estate is actually invaded by superinduced additions of water, earth, sand, or other materials, or by having any artificial structure placed on it, so as effectually to destroy or impair its usefulness, it is a taking within the meaning of the Constitution.” In O’Brien v. St. Paul it was held that a city was liable when it discharged its sewers into a small watercourse running through the plaintiff’s land, thereby doing the plaintiff damage. To the same effect is the case of Columbus v. Woolen Mills Co., supra.

As to the surface water accustomed to flow down from the upper locality, we have seen that the plaintiff stood for his defense upon his natural rights; and if the village had undertaken to build a sewer to carry off that, and it had proved inadequate, and occasioned no new damage, there might be no ground for liability. The case then would be like Mills v. Brooklyn, 82 N. Y. 489. In such case the village does not undertake to bring upon the plaintiff’s land any new substance — to impose any new burden, or expose the plaintiff to any new peril; but simply to regulate and control the flow of water already running there. The law regulating the rights of individuals and corporations in respect to surface water is quite a different thing from that governing the disposal of house drainage, which every householder is bound to keep upon his own premises, and in respect to which the public authorities, if they undertake its disposal, are held to the exercise of proper care and skill. We have seen that the village undertook to discharge the sewage of the upper locality down through the watercourse in addition to the surface water accustomed to run there, and that this was unlawful and gave the plaintiff a remedy. Now, when the village, in 1872, undertook the construction of the sewer in question — digging a new channel and constructing a new sewer — and by means of bad workmanship the plaintiff was subjected to damage, is it any answer to say you shall receive no damage for the later injury, because you are no worse off than before. The village did not undertake a service to the plaintiff. The sewer was built specially to accommodate the locality above him. The damage complained of is not charged to the flow of surface water, but to the filth and offal that the village has undertaken to transport from the upper locality to East Creek, and which by their negligence has escaped in transitu. If the plaintiff had suffered like damage from the same cause, before the construction of the sewer in. question, it was not because he was bound to suffer the sewage to be emptied upon his premises like surface water, but because the village had wroogfully taken his land and appropriated it without legal right as a place of deposit for sewage. Thus it is seen that the offer of evidence to show that the plaintiff’s damages were no greater than the former damages, did not disclose an excuse for the present injuries, but did establish that the plaintiff had two causes of action against the village instead of one. The damages now complained of were occasioned by the breach of the very condition upon which the right to place the sewer upon the plaintiff’s premises was granted. The doctrine contended for as applied to his case, has very little sanction in authority and none whatever in reason.

The jury were told in the charge that in measuring the care and skill required of the defendant in the construction of the sewer, the location selected was an element for consideration. Eor all practical purposes in this case it is wholly unimportant whether that direction was proper or otherwise, because the jury, upon competent evidence, have found specially that there was negligence in the construction, irrespective of the question of location. But it is somewhat difficult to see why the location of a contemplated work of this kind is not one of the most important factors in the problem how to build the sewer with reasonable skill. The plan adopted fixed the location of a sewer from a portion of the village north of the railroad through the plaintiff’s land to East Creek. The duty assumed was, to construct that sewer in that location with due care and proper skill, to the end that it should convey the drainage emptied into it to its ultimate destination, without damage to residents along its route. The nature and amount of the drainage to be transported, the natural law by which it is propelled, the grade that would accelerate its pace, the angles that would impede its flow, and other considerations obviously involved, were all to be weighed in measuring the degree of diligence required to build a sewer that would subserve the purposes of a sewer and discharge its contents at the place of deposit. The strength of the sewer, and the materials and workmanship employed, must be determined with reference to the obstacle to be overcome.

We find no error in the record, and the judgment is affirmed.