MILNER HOTELS, INCORPORATED v. City of Raleigh , 268 N.C. 535 ( 1966 )

151 S.E.2d 35 (1966) 268 N.C. 535

MILNER HOTELS, INCORPORATED
v.
CITY OF RALEIGH, Gateway Plaza, Inc., Seby B. Jones and Robert D. Gorham.

No. 530.

Supreme Court of North Carolina.

November 23, 1966.

Young, Moore & Henderson, by J. Allen Adams, Raleigh, for plaintiff appellant.

Paul F. Smith, City Atty., Donald L. Smith, Raleigh, for City of Raleigh, appellee.

PLESS, Justice.

In Johnson v. City of Winston-Salem, 239 N.C. 697, at p. 707, 81 S.E.2d 153, 44 A.L.R. 2d 949, which is cited by the Present Chief Justice Parker, in Hormel & Company v. City of Winston-Salem, 263 N.C. 666, at p. 675, 140 S.E.2d 362, at p. 368, it is said: "The general rule is that a municipality becomes responsible for maintenance, and liable for injuries resulting from a want of due care in respect to upkeep, of drains and culverts constructed by third persons when, and only when, they are adopted as a part of its drainage system, or the municipality assumes control and management thereof." That this is the generally accepted rule is shown by the following excerpt: "The rule as to municipal liability for defects and obstructions in sewers and drains * * * remains the same whether a natural watercourse is adopted for drainage purposes or an artificial channel is built; and, where a municipality has assumed jurisdiction over a stream flowing into the city, it may become liable for injury caused by its negligence in the control of the water. Where a city adopts a natural watercourse for sewerage or drainage purposes, it has the duty to keep it in proper condition and free from obstructions, and it is liable for damage resulting from neglect therein." 63 C.J.S. Municipal Corporations § 877, p. 262.

The plaintiff specifically alleges that the City "utilized said natural stream or watercourse to drain the storm and surface drainage of a substantial part of the center of the City * * * and had adopted said stream or watercourse as a part of its storm drainage system or sewer".

Further quoting from the Johnson case, supra: "[T]here is no municipal responsibility for maintenance and upkeep of drains and culverts constructed by third persons for their own convenience and the better enjoyment of their property unless such facilities be accepted or controlled in some legal manner by the municipality."

38 American Jurisprudence, 636 and 637, also states this to be the general rule: "In the application of the principles governing municipal liability for injuries resulting from defects or obstructions in sewers, it is immaterial whether the actual construction of the sewer was done by the municipality or by a private individual, if it is under control of the municipality at the time.

"When, therefore, a municipal corporation assumes the control and management of a sewer or drain which has been constructed in a public street under its supervision, it is bound to use reasonable diligence and care to keep such sewer or drain in good repair, and is liable in damages to any property owner injured by its negligence in this respect.

"The duty of maintaining sewers and drains in good repair includes the obligation to keep them free of obstruction, and a municipality is liable for negligence in its exercise to any person injured by such negligence, whether the damages result from its failure to use reasonable diligence to keep its sewers and drains from becoming clogged,—as where the municipal corporation fails in its duty to exercise a reasonable degree of watchfulness to ascertain the condition of sewers and drains from time to time so as to prevent them from becoming obstructed."

The complaint brings this case within the above rule when it alleges that the City "entered into a contract and agreement with the State Highway Commission to maintain, inspect and repair the streets and culverts within the corporate limits of the City" * * * and "undertook from time to time to perform the promised maintenance under its contract."

The demurrer should have been overruled.

Reversed.

BOBBITT, J., concurs in result.