Horton v. Mayor of Nashville , 72 Tenn. 39 ( 1879 )

Cooper, J.,

delivered the opinion of the Court.

The Chancellor overruled a demurrer to the bill, and the defendant appealed.

It appears from the bill as amended, and as it comes before us, that complainant, Anna E. Horton, wife of J. W. Horton, became, on February 20, 1875, the owner for life, with remainder to her two children, by deed of gift from her father, of an improved lot on Broad street, in Nashville, fronting twenty-three feet eight inches on Broad street, and running back one hundred feet. In the year 1872, the corporate authorities of the city constructed a sewer across Broad street, and under the house erected on said lot, and other houses adjoining thereto, upon á lot in the rear, and thence by open drain into Wilson’s Spring branch.

This sewer was at first sufficient for the purpose intended, but the corporate authorities from time to time constructed other sewers and surface gutters, and connected them with the original sewer, whereby the latter became the only means of escape for the water and foul drainage of a large additional territory, the rainfall of which territory would not naturally flow upon the property in question, but would fiud its way to the river in other directions. The result is that the volume of drainage, in hard rains, breaks open the ' sewer under the house, injuring the walls and articles stored therein, rendering the cellar valueless, and, by filling the upper rooms with foul gases and effluvia, making the building unhealthy, and unfit for either residence or business. The sewer has also been permitted negligently, from time to time, to become obstructed, so that the property of complainant, and other property on both sides of Broad street, were flooded by sewage and injured. On September 30, 1876, the city engineer called the attention of the corporate authorities to the insufficiency of the sewer for the drainage thrown upon it, and to the necessity of a new sewer along Broad street to .the river. On March 26, 1878, the Mayor of the city, in a message to the common council, called their attention to the condition of the sewer, and recommended the construction of a new sewer along Broad street to the river. And just before the filing of the bill, on October 1, 1878, the complainants petitioned the corporate authorities for a removal of the nuisance and for damages, without avail. The prayer of the bill is that the corporate authorities be, by the final decree, compelled to construct a sewer along Broad street to the river, and such other side drains as may be necessary to secure the health of the city, and remove the nuisance created by the defective sewerage mentioned, and that complainants be allowed such damages as may he just and proper for the injuries _ sustained.

The main object of the bill is to compel the city, by mandatory decree, on final hearing, to construct a new sewer from complainant’s lot along Broad street to the river, a distance, as shown by the bill, of 1,660 feet. The ground of demurrer assigned to this part of the relief sought is, that the building of a public sewer by a municipal corporation is the exercise of a legislative’ discretion, which the Court will not control. And to this effect are the authorities.

The reason for the ■ rule has been admirably stated by Denio, C. J., in Mills v. City of Brooklyn, 32 N. Y., 495. “ It is not the law,” he says, “ that a municipal corporation is responsible in a private action for not providing sufficient sewerage for every or for any part of the city or village. The duty of draining the streets and avenues of a city or village is one’ requiring the exercise of deliberation, judgment and discretion; It cannot, in the nature of things, be so executed that in. every single moment every square foot of the surface shall be perfectly protected against the consequence of water falling from the clouds upon it. This duty is not, in a technical sense, a judicial one, for it does not concern the administration of justice between citizens, but it is of a judicial nature, for it requires, as I have ■ said, the same qualities of deliberation and judgment.' It admits of a choice of means, and the determination of the order of time in. which improvements shall be made. It involves, also, a variety of providential considerations relating to the burdens which may be discreetly imposed at a given time, and the preference which one locality may claim over another. If the owner of property may prosecute the corporation on the ground that sufficient sewerage has not been provided for his premises, all these questions must be determined by a jury, and thus the judgment which the law has committed to the city council, or to an administrative board, will have to be exercised by the judicial tribunals. The court and jury would have to act upon a partial view of the question, for it would be impossible that all the varied considerations which might bear upon it could be brought to their attention in the course of a single trial. Such a system would be as vexatious in practice as unwarranted in law.” The distinction between the political or discretionary powers of the governing body of a municipal corporation and the exercise by the corporate authorities of ministerial powers is everywhere recognized. Dill. Mun. Cor., § 753, 778, and cases cited.

No authority has been produced tending to show that a Court of Chancery has ever undertaken • to compel a municipal corporation to construct a sewer in a particular direction, or of specified dimensions. If such. a power exists in the Court, it may • be exercised to control the discretion of the local legislature in opening, grading and improving streets, or in any other matter about which that body may he authorized to legislate. The corporate functions would no longer depend upon the deliberate action, after consideration of all the circumstances, including the ways and means, of the municipal council, but mpon the verdict of a jury or the decree of a court. Both reason and authority are against the power of the Chancery Court to grant the relief sought.

The remaining object of the bill is to recover damages for the injury sustained by the. complainants by the overflow of the sewer, either by reason of its insufficiency in size to carry off the drainage, its defective construction, or its being negligently permitted to become obstructed.

Although the city authorities are entrusted with a discretion in regard to constructing drains and sewers in the first instance, yet when they have constructed them it is probably their duty to keep them in proper repair and free from obstruction. Mayor of N. Y. v. Farze, 3 Hill, 612; 1 Denio, 601; Hutson v. Mayor of N. Y., 9 N. Y., 163; Barton v. City of Syracuse, 36 N. Y., 54; McCarthy v. Syracuse, 46 N. Y., 194; Meares v. Wilmington, 9 Ind., 73. And they are liable in damages for a neglect of these ministerial duties by which individuals suffer injury. It is certain also that equity has jurisdiction to enjoin and abate nuisances. 2 Story Eq. Jur., sec. 925; 2 Dan. Ch. Pr., 1635. And this jurisdiction is not interfered with by the provisions of the Code conferring on the courts of law the power to abate nuisances in propel cases: Lassater v. Garrett, 4 Bax., 368. The continuance of a nuisance is also a new offense; Nashville & Decatur R. R. Co. v. State, 1 Bax., 55. But the jurisdiction of equity to give damages is incidental to its jurisdiction to interfere by injunction, or upon some recognized ground of equity. 2 Story Eq. Jur., § 796, 924. A suit for damages merely cannot be maintained, and is not authorized by the Act of 1877, ch. 97, which expressly excepts from the new jurisdiction conferred all causes of action for injuries to property involving unliquidated damages.

The bill before us does not ask either a temporary or perpetual injunction of any kind. Nor is it easy to see how it could. The sewer complained of must have been constructed with the knowledge and acquiescence of the owners of the property at the time. The complainants have, perhaps, neither the right nor the inclination to abate it in toto. What they want and ask is a new sewer altogether and damages for the injuries done. The former the Court cannot give, for the reasons stated, and the remedy for the latter is at law.

Reverse the decree and dismiss the bill with costs,