Mayor of Troy v. Coleman , 58 Ala. 570 ( 1877 )

MANNING, J.

The complaint, in four counts, alleges in different forms, that the appellant, defendant below, had caused certain ditches and sewers to be constructed for the drainage of the town, by which it had collected and concentrated the water in a much larger volume and stronger current than previously, upon the premises of appellee, the plaintiff, and caused the tearing up .and washing away of the soil and earth of his lot, to his great damage.

1. A demurrer was filed; after which an amendment was made, adding, after the name of defendant — The Mayor and Councilmen of Troy — the words, “ a municipal corporation in the State of Alabama under the laws of the State of Alabama.” The first cause of demurrer assigned, did not specify any particular in wbicb the complaint failed to set forth a substantial cause of action, and, therefore, under the statute on the subject, can not be regarded.

2. The second ground of demurrer is, that the complaint shows that the acts complained of were of a judicial nature, for which defendant can not be made liable. This is a misapprehension. The acts complained of may, as they affected the inhabitants of the corporation, be regarded as administrative, but they are no more judicial, when done by such a body politic, than if they were done by an individual. And, with Judge Dillon in his work on Municipal Corporations (§ 799), “ we are unable to assent to the doctrine that, by reason of their control over streets, and the power to grade and improve them, the corporate authorities have the legal right intentionally to divert the water therefrom, as a mode of protecting the streets, and discharge it, by artificial means, in increased quantities, and with collected force and destructiveness, upon the property, perhaps improved and occupied, of the adjoining owner.” See, to a like effect, the opinion of "Walker, J., in City Council of Montgomery v. Gilmer, 33 Ala. 130, and cases there referred to.

3. The third ground of demurrer that the “ complaint shows on its face, that defendant is a municipal corporation,” discloses no defect in the complaint, and is without consequence. And the other two grounds assigned, are without foundation in the complaint.

4. The interrogatory, whether “the water could have any other outlet through plaintiff’s lot from the street, unless the Council was to make one,” was irrelevant, and there was no error in sustaining the objection made to it.

5. Appellant proposed to prove, “that one of the sewers complained of by plaintiff,” (they seem to have been culverts, rather than sewers, and to have extended only across the street,) “was put there at the request of Joel D. Murphree, who owned said lot at that time,” that is, the lot now belonging to plaintiff, to which the damage was done. But the circuit judge ruled that this could not be done. . It seems to us, that in this there was error. If the former owner, who had power to charge'the lot with any servitude in favor of the public, expressly authorized the building of one of the structures complained of, in such a situation and manner as that it would naturally turn upon the lot a large portion of the water which they desired to divert from the street, he thereby deprived himself of any right of action against the corporation for that which he, with a knowledge of the consequences to his property, induced the authorities to do. And he could not, by a transfer of the lot to another, invest bis alienee with larger rights than be himself had. The purchaser would take the property cum onere. As for this error, the judgment will have to be reversed.

6. It is unnecessary to examine the very numerous charges that were asked of, and given or refused by the court. We will add only, that, as the matter complained of is in the nature of a nuisance, the mere fact that the former owner brought no action for it, or made no complaint against it, will not preclude a purchaser from him of a right to recover for the damage he may suffer therefrom, if by the act of his grantor, the lot had not been subjected to the servitude of an outlet for the water of which the streets ought to be relieved. A ruling of this nature, was made by the Supreme Court of Minnesota, in a case very similar to the present. — O’Brien v. The City of St. Paul, 18 Minn. 176.

Let the judgment be reversed and the cause remanded.