Cauthen v. City of Canton

Ethridge, J., delivered the opinion of the court. This record embraces two suits. The first is a suit for damages to a. dwelling house and property situated on a certain ditch in the city of Canton, which is alleged to have been established by the city as a part of its drains, and that by the negligence of the city in keeping it in improper repair the water overflowed the lot of the plaintiff and washed away part of her lot because the proper precaution against erosion was not provided by the city, causing the land to cave into the said ditch, and because the city, by paving its streets, had caused additional water to be cast into the ditch or drain, which, in the ordinary course of nature, would have percolated into the ground, and that the city did not provide the proper protection from this increased flow of water by *478 •which the flooding of lands and caving of banks of the said ditch were increased. The second suit is for an injury to the property caused by the negligent construction of a culvert by the city of Canton across one of its streets over the said ditch, which was insufficient to take care of the water, and which, due to the negligent construction and maintenance of same, water fails to go off, and stands in the culvert and becomes stagnant and foul-smelling, filthy and unwholesome, thereby constituting a nuisance; that in this stagnant water mosquitoes breed and multiply with great rapidity, rendering the property less valuable and diminishing the enjoyment of its use by the residents. The proof in the case shows that the ditch is a natural drain, and has always existed as such; that, while the city of Canton has adopted it as a drain for the city, it has not changed any of the natural drainage so as to cause the water to flow into the said ditch that did not flow therein-by nature, except it is shown that certain streets were paved, and by being’ paved the percolation of waters flowing upon the land is prevented and-cast into the drain, or ditch. It is contended by the city that, inasmuch as no artificial drains empty into this ditch casting waters therein that were not accustomed to flow there, the city had the right to hasten the flow of the water occasioned by its paving of the streets. The city relies upon Drainage District Commissioners v. Drainage District Commissioners, 130 Miss. 764, 95 So. 75, 28 A. L. R. 1250; and other cases, in so far as the suit for damage to the lot occasioned by the increased flow of water and the overflow of water upon the lot are concerned. We think that the contention of the city is supported and controlled by that case, and by Herring v. Lee County, 130 Miss. 1, 93 So. 436. In regard to the second suit, we think the proof for the plaintiff was insufficient to establish liability. The suit was filed prior to the May term, 1925, and the case *479 was tried in March, 1926. The proof for the plaintiff upon the nuisance feature is as follows: “Q. How about this culvert they have constructed — ■ does the water stand in there now?1 A. It does. “Q. Explain to the jury about where that is. A. It is just a few feet from my door and in sprinkling the street the water goes under this culvert and stands there all the summer, creating an odor almost unbearable even in dry weather. It is so near the porch we can’t sit on the porch; it causes a breeding place for mosquitoes. That is the evidence of one of the city’s men. “Q. Have you complained of this? A. I have. “Q. Have the mosquitoes made it unhealthy at all? A. Very uncomfortable. “Q. And very inconvenient? A. Yes, sir. “Q. Are you able to sit on your front gallery in the summer months when it is hot? A. It is very unpleasant if you have to do it. We sit there, but it is very unpleasant. ’ ’ This testimony was not given by the owner of the property who brought the suit, but by her daughter who lived at the place at the time of the trial, and who had been living at the place presumably with her mother for two or three years. The proof does not show that this condition existed prior to the filing of the suit, but the questions indicate that it was a condition existing at the time of the trial. Appellee contends that this testimony as to the unbearable odor, as shown by the answers above quoted, is the evidence of the city’s man and consequently hearsay. But treating it as being the testimony of the witness, and that she intended by the statement, “That is the evidence of the city’s man,” to show that the city’s man agreed that the conditions existed, still it does not place the existence of this condition at the time of the filing of the suit and prior thereto. Of course, the rights of the parties are determined by conditions existing at and before the filing of the suit. *480 The trial court granted a peremptory instruction in this suit also, and we think the judgment is correct, and must be affirmed. Affirmed.