Munn v. City of Hudson

Headnote

Municipal corporation—liability of, for injury to the property and health of an abutting owner from the escape of sewage from a negligently constructed city sewer—what act is governmental and what ministerial.

A municipality, in determining whether it will build a sewer, its location and general plan, acts judicially and is not ordinarily liable in a civil action for its decision in matters connected therewith. Such an action is governmental and public and not ministerial and private; but the act of building and maintaining the sewer is ministerial, in the prosecution of which the municipality incurs the same liability for negligence causing injury as does an individual.

Where the basement of a-house draining into a city sewer, with which by a city ordinance the owner is required to connect her drain, is flooded with sewage, and upon an investigation it is found that the tiles composing the city sewer are crushed in and filled up with earth and solid matter owing to the fact that the sewer was constructed in a negligent and improper manner, and not according to the plans and specifications which were adequate and sufficient, the municipality is liable to the owner of the property for the damage done thereto, and, also, for the damage done to her health in consequence of the escape of sewage therefrom and its discharge upon her premises.

Appeal by the defendant, The City of Hudson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 27th day of December, 1899, upon the report of a referee.

The defendant is a municipal corporation, and power to construct sewers is specifically included among the powers granted to it by special charter. In the latter part of the year 1887 the common council of defendant directed that a double - tile sewer be built in State street in said city to connect with a stone sewer in Front street and to extend to and connect with a brick sewer at the easterly line of Fourth street, a distance of. 2,896 feet, and that the same be built in accordance with plans and specifications adopted by said common council on the thirteenth day of September of that year. The common council provided that the sewer be built of fifteen-inch inside diameter vitrified tile, also, “ tile to be laid in one foot of sand in the bottom of the ditch so as to give an even bearing to at least the center line of the tile ; ” also, “ all joints to be carefully and properly cemented.” Also, “ the work on said sewer in all stages of its progress, to be subject to the. inspection and approval of the city surveyor.”

The defendant entered into a contract with one Brennan to build ¡said sewer and it was built;in the late fall and early winter, the work being carried on part of the night as well as in the daytime. The defendant was represented not only by the city surveyor but also by a special superintendent. The plaintiff is the owner of a lot with the buildings thereon, which lot is fifty feet wide on State street and extends back one hundred and twenty feet along the easterly side of Third street. After the completion of said sewer the defendant duly assessed the sum of twelve dollars and eighty cents as a part of the expenses of constructing said sewer on the said lot and premises now owned by the plaintiff, which assessment was paid. An ordinance of the board of health of the defendant requires'all residents along the line of a public sewer to connect their drains with such sewer, and after the completion of said sewer all drains from the premises of the plaintiff were connected with the said sewer pursuant to said ordiance. . On the plaintiff’s lot is a two-story and basement building. The basement consists of four rooms; the first room facing on-State street was used by the plaintiff as a grocery store; the second room as a saloon; the third room as a dining room, and the fourth or rear room as a cellar and storeroom for groceries, etc. The building is situated twenty-three feet back from the gutter line of State' street, and between the sidewalk and the front of said building is an areaway about ten feet square and' the entrance thereto is by steps from said sidewalk, and from said areaway is a door leading into the basement. In connection with said sewer the defendant erected a catch basin at the corner of Third and State streets to take the surface water from the gutters. The top of said catch basin is one and seven-tenths feet above the bottom of the areaway, and the bottom of the areaway is two and three-tenths. . feet above the bottom of the catch basin. There is a drain connecting the bottom of the areaway with said sewer, and also a drain in Third street connected with said sewer and leading to a vault and. to a sink on the premises of the plaintiff. The plaintiff asserts that in the winter of 1895 and 1896 her cellar became damp and that she notified the city engineer and he came to her premises and said the-catch basin was too small and that he would have it made larger,, but it was not done until April, 1891. The cellar continued' damp through the year 1896 so that groceries could not be kept in. the

cellar. The plaintiff further asserts that in January, 1897, the water came into the basement so that it stood on the floor. The city superintendent of streets was notified and he promised to come and see the premises, but he did not do so and the water disappeared and nothing was done about it. Prior to April ninth there had been trouble with the State street sewer at the intersection with Second street, a block below plaintiff’s premises, and the tiles were then uncovered and found to be broken and filled up, and some a foot lower than others and they were repaired. On the ninth day of April water came into plaintiff’s basement-until it was seventeen inches deep on the floor., The city engineer was notified that day. On the following day the plaintiff notified the mayor and the board of health and the health officer ordered the superintendent of streets to attend to the matter. The superintendent of streets ordered that plaintiff’s house drains be opened and eight days’ digging was done on plaintiff’s premises to see where the water came from and nothing was found to account for the water. During this time the plaintiff had to walk on planks through her basement to get up and down the stairway-. A rain storm followed and the basement was further flooded, but nothing further was done to ascertain whether the sewer was not broken and out of repair as it had recently been found to be at the intersection of State and Second streets. About the end of the month the water again disappeared and plaintiff refitted and reopened her store and put in a new stock of goods. On the twelfth day of July the basement was again flooded with filthy sewer water. And on the fourteenth the sewer water in the basement was twenty-four inches deep. The defendant then made an investigation of the drain in State street and found the tiles crushed in and filled up at the intersection of State and Third streets. The tiles leading from the catch basins to the sewer were found to be entirely filled up with earth and solid matter. Plaintiff claims that shortly after the flooding of her premises in January, 1897, she began to suffer front neuralgia and pain in her head and ear and with loss of hearing. In January and February she was in the care of a physician and confined to her bed for séven weeks. After the April flooding an abcess formed in her right ear from which she claims to have suffered excruciating pain and she lost entirely the sense of hearing in her right ear.

This action is brought by the plaintiff to recover damages to her1 property and person. The referee found the damages to plaintiff’s; property to be $800 and to her person $1,000 and judgment was,. entered for $1,800 and costs, from which / judgment this appeal is, taken.