Powers v. City of Council Bluffs , 50 Iowa 197 ( 1878 )

Rothrock, Ch. J.

i. municipal negi¿enc™f: officers. I. That a gas-pipe was laid across the sewer in the manner as stated in the eighth finding of fact does not admit of controversy. This finding is fully established by the evidence. One Joel Baton wag ea]ie(j as a -witness by the plaintiff. He testified that he was secretary of the Council Bluffs Gas Company, and that in 1870 said company put down a pipe across the sewer in question. He was then asked to state by whose permission or authority he laid down those gas-pipes; to which he made answer that it was done by permission of Palmer, the mayor of the city. The question and answer were both objected to as incompetent, and as not the best evidence of the right to use the streets, and upon the ground that the city can be bound only by the acts of the city council. The objection was overruled. The witness proceeded to state that the mayor directed the gas-pipe to be put in, and that plaintiff was present and made objection to the mayor.

L. W. Babbitt, who was a member of the city council when the gas-pipe was laid, testified that the matter of putting the gas-pipe across the sewer was discussed in the council before and after the pipe was laid.

The plaintiff testified that the year after the gas-pipe was put in the culvert failed to carry off the water, and that he then notified the members of the city council, and asked them to do something about it.

It is urged in the argument that this evidence should not have been admitted, because the city could only give consent •to the laying of the pipe by its council, while in session. We apprehend that as city councils have authority to construct ¡sewers, and have control of the streets for that purpose, and ¡authority to permit gas-pipes to be laid, it would be a most unreasonable requirement to compel a party injured by negligent or improper construction to show that the city council, by resolution or vote, authorized the negligent acts to be done. The city acts through its officers in making improvements, and is bound by their negligence. If the gas-pipe were an obstruction the notice given by the plaintiff to the members of the city council was sufficient. See Rowell v. Williams, 29 Iowa, 210.

s_._. care required. II. It is urged that deciding to put in the gas-pipe across the sewer was a judicial act upon the part of the city, and that, for an error of judgment as to its effect as an obstruction, the city is not liable. This proposition leaves out of view the important consideration that in putting in said obstruction, or permitting it to be done, the city exercised reasonable skill, prudence and care. For a mere mistake, notwithstanding the exercise of proper care and the employment of competent skill, the corporation would not be liable. See Vanpelt v. The City of Davenport, 42 Iowa, 308.

In view of the fact, as found by the court, that the sewer was of sufficient capacity when it was constructed to carry off the water without injury to the adjoining premises, and that .after it was obstructed by the gas-pipe it was not sufficient, of which the city had notice, it is evident that if the city was not culpably negligent in permitting the obstruction in the first instance, there was negligence in allowing it to remain.

3_. im_ streetsTñeghgence. III. It is urged that it was the right of the city to .abandon all sewerage, and cease to keep up repairs, and allow the surface water to flow as it was wont to do without sewers, provided the property of individuals is placed in no worse condition by such a course .than before any improvements were made. To this proposition we cannot assent. Where a city establishes grades,, improves streets, makes culverts, etc., and the owners of property build and improve with reference to the improvements made by the city, the corporation is liable for negligently permitting obstructions by reason of which injuries-occur to the property owners. It cannot escape liability upon the ground that the negligent acts caused the water* to flow where it did originally. Damour v. Lyons City, 44 Iowa, 276.

4.-: water IV. It is insisted that the flood which caused the injury was extraordinary in its destructive character, and that the finding of the court that the rain-fall was not unusual was contrary to the evidence. All of

the witnesses who were interrogated upon the subject state that in that locality many severe rain storms have occurred. It is conceded by counsel for the appellant that the evidence shows that one storm in 1858 and another in 1869 were about equal in point of force and violence to that which occasioned the injury. The rule is that it is the duty of the city to provide water ways sufficient to carry off the water that might-reasonably be expected to accumulate, judging from such floods as had previously occurred. That the finding in this case is correct under this rule see Damour v. Lyons City, supra, and Mayor v. Bailey, 2 Denio, 433.

V. Finally, we may say that a careful examination of the testimony of all the witnesses has led us to the conclusion that all of the findings of fact find sufficient support in the evidence.

Affirmed.