Fair v. City of Philadelphia , 1879 Pa. LEXIS 48 ( 1879 )

Mr. Justice Mercur

delivered the opinion of the court March 10th 1879.

This was an action on the case. The plaintiff claimed to recover damages which he had sustained, by reason of the insufficiency of the public sewer to carry off the surface water which accumulated on his premises. The case was submitted to a referee. He found the facts and stated his conclusions of law. No exceptions were filed as to the correctness of his finding of facts. The exceptions to his conclusions of law, finding the city was not liable for damages, were overruled and judgment entered for the defendant. This presents the alleged error.

It appears that the house of the plaintiff was situate at the corner of Thirteenth and Fitzwater streets. Formerly, the sewer in that vicinity was of sufficient capacity to pass, and did pass, rapidly, not only the water with which it was otherwise charged, but also the surface water which either fell or-flowed on the land of the plaintiff. Afterwards and before the injury complained of the city extended its system of sewerage westerly, thereby causing a larger volume of water to flow through the sewer past the premises of the plaintiff. During violent storms the sewer was so charged with water as to prevent the surface water, which accumulated on the lot of the plaintiff, from flowing into, and through the sewer, thereby causing the injury of which he complains.

The unquestioned finding of facts establishes not only that the whole injury was caused by surface water which accumulated on the premises of the plaintiff', but that none of it was thrown there by reason of the construction of the new sewer. None of the water which passed into that sewer Avas forced back or out of the old seAver so as to flood either the streets or the plaintiff’s property. The surface water causing the injury was none other than that which had been accustomed to Aoav there. The sewers were not defectively constructed. They were not out of repair. No negligent conduct can therefore be imputed to the defendant. It follows then that the right of the plaintiff to recover must rest on the omission of the city to make sewerage of sufficient capacity to receive and pass all the surface water Avhich accumulated along the line of the seAver. Conceding the insufficient capacity, it Avas only an error of judgment in the city authorities as to the size of which the sewer should have been constructed.

The time and manner of draining the streets of the city require the exercise of judgment, deliberation and discretion of the municipal authorities. The duty is therefore one of a judicial character. It involves a consideration of the financial condition -of the city, and of the time and plan of construction. It must, therefore, be left to the municipal authorities to determine the extent and capacity of the seAverago to be constructed, and not to the verdict of a jury to decide at the suit of an owner of property aggrieved. So long as it is the mere omission, as hero, of the authorities, to provide adequate means to carry off’ the water Avhich storms, and the natural formation of the ground, throw on a lot, the OAvner thereof cannot sustain an action against the municipality. This conclusion flows from the sound rule that a municipality is not liable for damages resulting from a lawful exercise of its discretionary poAA’er to plan and construct sewers and other improvements: Mills v. City of Brooklyn, 32 N. Y. 489 ; Smith v. Mayor et al. of New York, 66 Id. 295 ; Carr v. Northern Liberties, 11 Casey 324 ; Grant v. Erie, 19 P. F. Smith 420. The facts of the case before us do not bring it within Child v. City of Boston, 4 Allen 41; Mayor v. Furze, 3 Hill 612; Allentown v. Kramer, 23 P. F. Smith 406. They rest on some neglect of the authorities to repair or keep the improvements in proper condition. While, therefore, we cannot rest the present judgment on the unusual or unprecedented character of the showers, yet for the other reasons stated the judgment is affirmed.