Allen and another vs. The City of Chippewa Falls. of the grade the existing drainage of surface water might be changed or destroyed. In Hoyt v. The City of Hudson it was held, that where the passage of surface water is obstructed by a city in grading and improving its streets, the owner of adjacent land injured by such obstruction cannot recover damages therefor. Chief Justice DIXON in that case reviews the authorities at considerable length, and reaches the conclusion that this is the better rule of law upon the subject. But that question is not necessarily involved here, inasmuch as the liability of the city is placed upon the ground that, in constructing and grading its streets, it carelessly and unlawfully failed to provide gutters, sewers and other means for carrying off safely, by the premises occupied by the plaintiffs, the large amount of water which would accumulate and empty into Central and Bridge streets in heavy rain-falls. An exception was taken to an instruction, given at the request of the plaintiffs, which reads as follows: "No person or corporation has the right to increase the flow of surface water by adding thereto water which does not originate from natural causes; and if the jury find, in this case, that the defendant, by means of the grading of streets or the construction of gutters in the said city, did add to the natural flow of water passing over the said streets, and made no suitable provision for the conducting such water away; and if, by reason of such accumulation of water, it escaped from said streets upon the plaintiffs' premises, and damage occurred to the plaintiffs thereby, plaintiffs are entitled to recover, unless the jury shall find that the plaintiffs contributed by their negligence to such damage." - We are not certain that we fully comprehend the import of this instruction or the meaning intended to be conveyed. If it means that the city in grading its streets would have no right to collect and throw upon them water which would not otherwise have flowed or found its way upon the streets, with Allen and another vs. The City of Chippewa Falls. out constructing gutters or making some suitable provision for conducting such water away so that adjacent property should not be injured by it, and that if the city failed to do this, and damage resulted therefrom, the city would be liable, we see no objection to the instruction. But the instruction scems to be obscure in its meaning, and difficult to be understood even by a lawyer. But as we are not certain that we understand it, we will make no further remarks upon it. In our view, the most serious objection to the charge is, that it holds the city liable for the destruction of the building if it was occasioned by a rain-fall, however unusual or extraordinary, providing the gutters were insufficient to safely carry off the water. True, this proposition is not distinctly laid down in so many words, but it is the implication of the charge. Now, the evidence shows that the storm which destroyed the building was one of wind, rain and hail of a most unusual and extraordinary character. Bridge and Central streets were covered with surface water. One of the plaintiffs' witnesses says "there was water everywhere;" and that, as the lightning flashed, he "looked up Bridge street, and could see it coming down just like a creek." Another of plaintiffs' witnesses said "the streets were one sheet of water." And there is considerable testimony to the same effect, showing that the rain-fall and storm were most unusual and severe. Now, it seems to us to be carrying the doctrine of liability to a most unreasonable extent, to hold that the city was bound to provide gutters of sufficient capacity to carry off the surface water which might accumulate and run down its streets in such an extraordinary freshet. If the city provides drains and gutters of sufficient size to carry off in safety the ordinary rain-fall, or the ordinary flow of surface water, occasioned by the storms which are liable to occur in this climate and country, it is all the law should require. The remarks of DENIO, C. J., in Mills v. The City of Brooklyn, 32 N. Y., 489, 495, are so just and applicable to the present case, that I adopt them as Allen and another vs. The City of Chippewa Falls. giving my own views upon this question. "It is not the law," says that learned jurist, "that a municipal corporation is responsible in a private action for not providing sufficient sewerage for every or for any part of the city or village. The duty of draining the streets and 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 consequence of 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, as I have said, 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 given 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 the judicial tribunal." So it might be said, with reference to the question here, the duty of providing gutters of sufficient capacity and size to carry off the water falling from the clouds upon the streets, is one requiring the exercise of deliberation, judgment and discretion. Persons might well differ as to whether a gutter was ample to carry off all the water which would fall during a violent and excessive rain. If the city did provide gutters which were sufficient to conduct away in safety the rain-fall of ordinary storms-such freshets as usually occur in this climate, it would seem to be all the law should require. The duty of providing against an extraordinary rain-fall or -- Allen and another vs. The City of Chippewa Falls. unusual freshet, such as does not occur but once in a series of years, which persons of ordinary prudence would not think of guarding against, is a burden which ought not to be imposed upon the city. Besides, there is another consideration which has weight. There was testimony which tended to show that the premises in question were low, and below the established grade. In reference to premises thus situated Judge DILLON, in his work on Municipal Corporations, says: "And even when the work of graduating the streets has been entered upon, there is not ordinarily, if ever, any liability to the adjoining owner arising merely from the non-action of the corporation in not providing means for keeping surface waters from property situate below the established grade of the street. There are, indeed, cases which go further, and assert that there is no such liability, where, in making improvements upon streets or elsewhere, authorized by law, surface waters are purposely turned from one's own land to that of another - from the street directly upon the adjacent property." Section 799. The authorities cited in the notes fully bear out the doctrine of the text of the learned writer; but it is not necessary in this case to go to the extent of holding there would be no liability if it appeared that surface water was purposely turned from the street on the plaintiff's property to its injury. In this case the circuit judge, in one part of the charge, told the jury that a city was not required, in grading and improving the streets, to insure absolute, safety to property-owners that this might be impossible, but was bound to use reasonable care and skill in doing its work; but still the judge refused an instruction asked, that if the destruction of the building was occasioned directly by the storm, either by the wind, or by the rain and hail, or by all combined, the city would not be liable. In view of the testimony to which we have referred, we think the learned judge must have been of the opinion that the city would be liable for the loss, even The First National Bank of Appleton vs. Bertschy and another, imp. though it was occasioned by an extraordinary rain-fall or an unusual freshet, such as a discreet and prudent person would not think of guarding against, and therefore refused the instruction. Indeed, we think the implication of the charge is, that the city would be responsible under such circumstances for not providing sufficient gutters to carry off the rain-fall. This was error. Without noticing the other questions discussed, we think the judgment must be reversed, and a new trial ordered. By the Court. So ordered. THE FIRST NATIONAL BANK OF APPLETON VS. BERTSCHY and another, imp. May 10-June 4, 1881. * (1-5, 7, 8) Conveyance in fraud of creditors. (5–7) Statute of Frauds: Agreement to pay another's debt. Loan of money to one in reasonable expectation of payment by another. (6) Evidence of such expectation. (8) Conveyance void as against creditors treated as security for a debt of grantor to grantee. 1. One who takes a voluntary absolute conveyance of valuable property, knowing that the grantor is largely in debt and unable to pay his debts without subjecting such property to their payment, is guilty of a fraud in the law against the creditors of his grantor; and the conveyance is void as against them. 2. The fact that the grantee of land in such a case assumes to pay a subsisting mortgage on the land, which is confessedly worth a much larger sum than the mortgage debt, does not deprive the conveyance of its voluntary character as respects the mortgagor's remaining interest in the land. 3. If the maker of a note, which does not specify the rate of interest, has orally agreed to pay a higher rate (not usurious or unusual) than the note would otherwise bear, his payment of such agreed rate is not a fraud as against his creditors. |