Page images
PDF
EPUB

(101 N. Y. 136)

COURT OF APPEALS OF NEW YORK..

COURT

SIEFERT v. CITY OF BROOKLYN.

Filed January 19, 1886.

-

1. MUNICIPAL CORPORATIONS LIABILITY FOR INJURIES THROUGH INADEQUATE SEWERS.

The commissioners of sewage of Brooklyn constructed a main sewer in 1868, of insufficient capacity, so that heavy rains forced the sewage through the man-holes, and injured plaintiff's property. They continued to add lateral sewers to it, though knowing that they were increasing the damage to plaintiff. Held, that the city was liable for their action.

2. SAME.

The exercise of a judicial or discretionary power by a municipal corporation, which results in a direct and physical injury to the property of an individual, and which, from its nature, is liable to be repeated and continuous, but is remediable by a change of plan or the adoption of prudential measures, renders the corporation liable for such damages as occur in consequence of the continuance of the original cause after notice, and an omission to adopt such remedial measures as experience has shown to be necessary and proper.

John A. Taylor, for appellant.

Wm. C. De Witt, for respondent.

RUGER, C. J. The defendant in this case invokes the principle exempting municipal corporations from liability for damages occasioned through the exercise of judicial functions by its officers as a defense to the action. The cases on the subject are by no means harmonious, and render it difficult to deduce from them any general rule, founded upon principle, which clearly marks the line of distinction between liability and exemption therefrom. We have, however, been unable to find any case in this state going far enough to sustain the contention of the appellant.

Here certain officers of Brooklyn were constituted by statute commissioners of sewage and drainage, with power to devise and frame a plan of drainage and sewerage for the whole city upon a regular system, and, upon the adoption of a plan, to proceed to construct such of the drains and sewers as the public health, convenience, or interest should demand, or so much thereof as might be necessary. Chapter 521, Laws 1857. By chapter 136 of the Laws of 1861, the commissioners were further empowered, whenever it became necessary, to construct a drain or sewer in any street or avenue, for the purpose of preventing damage to property or to abate a nuisance; and if the same was not in accordance with any plan already adopted, to construct temporary sewers in certain cases, in a manner to avoid such damages or abate such nuisance. Under the authority conferred by these acts, the commissioners, prior to the year 1868, established a certain drainage district, covering a surface of nearly 2,300 acres of land, embracing within its limits a territory not theretofore drained, over the lands of the plaintiff, situated in the same district, and which contemplated the construction of a main sewer through cerV.4N.E.no.5-21

tain avenues and streets, into which it was designed that lateral sewers, intersecting the whole district, should empty, as they should be from time to time thereafter constructed, for the convenience of the people desiring them. In pursuance of this plan, the main sewer referred to was built in 1868, and subsequent to that time various lateral sewers were from time to time, between 1868 and the time of the trial, in 1884, constructed, and connected with said main sewer. Within a short time after the completion of the main sewer, actual use demonstrated that it had not sufficient capacity to carry off the accumulations of water and matter turned into it, and the result was that, at times of heavy rain and melting snow, the collected sewage, being obstructed in its flow, forced through the man-holes, and inundated the district in which plaintiff resides, inflicting serious injury to his property. The inundations commenced nearly 10 years previous to the trial, and increased in frequency and severity as new lateral sewers were from time to time built and connected with the main trunk, until finally they occurred as often as eight or ten times a year, and became well known to the officers of the corporation. Notwithstanding this fact, the corporation has continued to build and attach lateral sewers to the main trunk, and increased from year to year the evil produced by the defects of the original plan.

From this review of the facts it would seem that the case is not brought within the principles decided in the authorities referred to by the appellant. The immunity of a municipal corporation from liability for damages occasioned to those for whose benefit an improvement is instituted, by reason of the insufficiency of the plan adopted to wholly relieve their wants, or on account of a neglect of the municipality to exercise its power in making desired improvements, and other like circumstances, is quite clearly established by the cases. The liability in such cases has been generally, if not always, predicated upon the duty which the corporation owed its citizens to exercise the power conferred upon it to build streets, sewers, etc., for the convenience and benefit of its property owners, and its exemption from liability was based upon the limitations necessarily surrounding the exercise of such power and the judicial character of the functions employed in performing the duty. The question in Mills v. Brooklyn, 32 N. Y. 495, as stated by Judge DENIO, was that "the grievance of which the plaintiff complains is that sufficient sewerage to carry off the surface water from their lot and house has not been provided. A sewer of certain capacity was built, but it was insufficient to carry off all the water which came down in a rain storm, and the plaintiff's premises were to a certain extent unprotected. Their condition was certainly no worse than it would have been if no sewer at all had been constructed." It was there held that the corporation was not liable. The case of Smith v. The Mayor, 66 N. Y. 295, related to a sewer of sufficient capacity, but which was temporarily obstructed by a deposit of mud and sand, of which the corporation had no notice, and an overflow injuring plaintiff resulted. It was held that the corporation was liable for negligence alone, which could not be predicated upon the facts established. McCarthy v. City of Syracuse, 46 N. Y. 194, was a similar case, and the

In

same principle was there established; the city being charged with liability for an injury occurring through its neglect to repair a sewer after a lapse of time warranting the presumption of notice of the defect. Wilson v. The Mayor, 1 Denio, 598, the damages were occasioned by surface water, naturally falling upon the plaintiff's premises, but prevented from flowing off by the changes made in grading its streets by the city. It was held to owe no duty to its citizen to furnish drainage for the water naturally collected on his premises, and that no liability resulted from the change in the street grade made under statutory authority. It was further said that the power of the corporation "to make sewers and drains is clear; but it is not their duty to make every sewer or drain which may be desired by individuals, or which a jury might even find to be necessary and proper." Lynch v. Mayor of N. Y., 76 N. Y. 60, was also a case where the natural flow of surface water and drainage was obstructed by the exercise of municipal power in grading, pitching, and raising the public streets, and the city was declared free from liability for the damages incidentally occasioned to property in consequence of the obstructed drainage, and its omission to build drains for the convenience of the citizen. Its liability, however, in a case like the present, was conceded in the opinion delivered by Judge EARL. In Hines v. Lockport, 50 N. Y. 236, the plaintiff was injured by defects in a public street. It was held that the duty resting upon the corporation of building, opening, and grading streets, sidewalks, sewers, etc., was judicial; but that after they were constructed the duty of keeping them in repair was ministerial, and from an omission to perform that duty liability arose. Urquhart v. Ogdensburg, 91 N. Y. 71, was also a case of injury arising from a defective sidewalk, and the principle there laid down is in harmony with the cases above considered.

We have thus referred to the principal cases cited by the appellant, and find no warrant in them for the doctrine that a municipal corporation, in the exercise of its discretionary or judicial power of determining when, where, and how to make improvements, such as streets, sidewalks, sewers, etc., has the right to do so upon a plan which substantially involves the appropriation by it of the property of a citizen to the public use.

We entertain no doubt as to the liability of the defendant for the damages occasioned by defects of the sewer, and think it rests upon principles not conflicting with those announced in any reported case, but substantially harmonious with all of them. Municipal corporations have quite invariably been held liable for damages occasioned by acts resulting in the creation of public or private nuisances, or for an unlawful entry upon the premises of another, whereby injury to his property had been occasioned. Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317; S. C. 2 Sup. Ct. Rep. 719. This principle has been uniformly applied to the acts of such corporations in constructing streets, sewers, drains, and gutters, whereby the surface water of a large territory which did not naturally flow in that direction was gathered into a body, and thus precipitated upon the premises of an individual, occasioning dam

age thereto. Byrnes v. City of Cohoes, 67 N. Y. 204; Bastable v. Syracuse, 8 Hun, 587; S. C. 72 N. Y. 64; Noonan v. City of Albany, 79 N. Y. 475; Beach v. Elmira, 22 Hun, 158; Field v. West Orange, 36 N. J. Eq. 120; S. C. on appeal, 29 Alb. Law J. 397.

We are also of the opinion that the exercise of a judicial or discretionary power by a municipal corporation which results in a direct and physical injury to the property of an individual, and which, from its nature, is liable to be repeated and continuous, but is remediable by a change of plan, or the adoption of prudential measures, renders the corporation liable for such damages as occur in consequence of its continuance of the original cause after notice, and an omission to adopt such remedial measures as experience has shown to be necessary and proper. Wood, Nuis. § 752. While, in the present case, the corporation was under no original obligation to the plaintiff or other citizens to build a sewer at the time and in the manner it did, yet, having exercised the power to do so, and thereby created a private nuisance on his premises, it incurred a duty, having created the necessity for its exercise, and having the power to perform it, of adopting and executing such measures as should abate the nuisance and obviate damage. Phinizy v. City of Augusta, 47 Ga. 263; Byrnes v. City of Cohoes, supra.

It is a principle of the fundamental law of the state that the property of individuals cannot be taken for public use except upon the condition that just compensation be made therefor, and any statute conferring power upon a municipal body, the exercise of which results in the appropriation, destruction, or physical injury of private property by such body, is inoperative, and ineffectual to protect it from liability for the resultant damages, unless some adequate provision is contained in the statute for making such compensation. The immunity which extends to the consequences following the exercise of judicial or discretionary power by a municipal body or other functionary presupposes that such consequences are lawful in their character, and that the act performed might in some manner be lawfully authorized. When such power can be exercised so as not to create a nuisance, and does not require the appropriation of private property to effectuate it, an unlawful exercise of the right will not be inferred from the grant. Where, however, the acts done are of such a nature as to constitute a positive invasion of the individual rights guarantied by the constitution, legislative sanction is ineffectual as a protection to the persons or corporation performing such acts, from responsibility for their consequences. Radcliff's Ex'rs v. The Mayor, 4 N. Y. 195.

It has been sometimes suggested that the principle illustrated in the maxim, salus populi est suprema lex, may be applied to and will shield the perpetrators from liability for damages arising through the exercise of such power by a municipal corporation; but we apprehend that this maxim cannot be thus invoked. Wilson v. The Mayor, 1 Denio, 595. The cases where such a doctrine can be properly applied must, from the very nature of the principle, be confined to circumstances of sudden emergency, threatening disaster, public calamity, and precluding a resort

to remedies requiring time and deliberation. Whart. Leg. Max. No. 89; Mayor of N. Y. v. Lord, 17 Wend. 285. It is suggested in the latter case that even in such an event, under the principles of the constitution, the public would be liable for the damages inflicted. However this may be, we are quite clear that the theory that a municipal corporation has the right, in prosecuting a scheme of improvements, to appropriate, without compensation, either designedly or inadvertently, the permanent or occasional occupation of a citizen's property, even though for the public benefit, cannot be supported upon the principle referred to. If the use of such property is required for public purposes, the constitution points out the way in which it may be acquired, when there is no such imminency in the danger apprehended as precludes a resort to the remedy provided, and the only mode by which it can be lawfully taken in such cases is that afforded by the right of eminent domain.

No question arises here over the distinction between actual or constructive damages, for the inundation of an individual's premises constitutes a trespass, rendering the party occasioning the injury liable for the damages caused. Scriver v. Smith, 3 N. E. Rep. 675, (N. Y. Ct. App. November, 1885;) Cooley, Torts, 332; St. Peter v. Denison, 58 N. Y. 416; Pumpelly v. Green Bay Co., 13 Wall. 168; Eaton v. Boston, C. & M. R. R., 51 N. H. 504.

We are also of the opinion that the cases holding that corporations acting under the authority of a statute cannot be subjected to a liability for damages arising from the exercise by them of the authority conferred, have no application to the circumstances existing in this case, as those cases are confined to such consequences only as are the necessary and usual result of the act authorized.

The exercise of the authority conferred upon the commissioners of sewage and drainage did not require the injury to the property of the citizens of Brooklyn which has been occasioned by the inundations complained of, and it was not the natural or necessary result of a proper exercise of their powers. Those injuries arose solely from the defective manner in which the authority was originally exercised, and the continuance in the wrong after notice of the injury occasioned. In such case corporations have been uniformly held liable. Radcliff's Ex'rs v. The Mayor, supra.

Wood, Nuis. § 752, says:

*

*

"The rule being that no action lies against an individual or corporation for doing that which is authorized by the legislature, so long as the authority is properly exercised and not exceeded, but that liability does attach where the authority is negligently or improperly exercised, and where, by a reasonable exercise of the power given either by statute or the common law, damages might be prevented, it is held that a failure to exercise such power is such negligence as charges them with responsibility for consequent damages. "As to the necessity for a sewer, or its location, or the system or plan of sewerage, the decision of the proper municipal officers is conclusive, because it is an exercise of a discretion reposed in them by the law, and consequently is not reviewable by the courts; but if, in the selection of a location, it unnecessarily creates a nuisance to public or private rights, it is responsible therefor;" citing Franklin Wharf Co. v. Portland, 67 Me. 46; Banon v. Baltimore, 2 Amer. Jur. 103; Haskell v. New Bedford, 108 Mass. 208; and many other cases.

« PreviousContinue »