Allebrand v. Borough of Duquesne

Opinion by Rice, P. J., The plaintiff is the owner of a lot on the corner of Third street and Hamilton avenue. Formerly, a natural water course branched on private premises on the opposite side of Third street and flowed thence in two channels to and across the street and the plaintiff’s lot. The plaintiff put on his premises an eighteen inch terra-cotta pipe to take the water of the main channel, and a box culvert to take the water of the lower and smaller channel, and afterwards erected over them five houses [221] fronting on Third street. These contrivances, he alleges, were sufficient to cany off the waters of the run without changing its natural course and without injury to his property or that of his lower neighbors. After he had improved his property in the manner described, a new channel was dug, extending from the point where the run naturally branched into two channels to Third street, and through it, and a box culvert put across the street, the whole volume of water was conducted to the plaintiff’s side of the street, at a point higher up than either of the original channels, and was then allowed to find its way down the street in a single channel. When the volume was increased by storms, he alleges, the water flowed over upon his premises and damaged them. For this he brought an action of trespass against the borough and obtained a judgment from which this appeal was taken. The principal matter assigned for error, and the only one that need be noticed, is the refusal of the court to charge, as requested, that under the pleadings and evidence the verdict should be for the' defendant. This requires us to look at the plaintiff’s statement. It is well drawn and distinctly alleges as the cause of action, that the borough, “ by its officers and agents, diverted the said run from its natural channel .... dug a new channel for said run and confined all the water therein .... and then turned the waters of said run into a single channel along Third street, so that the same were discharged in and upon the property of said plaintiff, and so that the burden of all the waters of said run was required to be borne by the property of said plaintiff, and the same became and was greatly injured and damaged,” etc. This was a good cause of action within the principles of many adjudicated cases. Was it proved? We have quoted the material averments of the statement for the purpose of showing that it alleges, not the nonexercise of powers either discretionary or otherwise, nor negligence in the execution of them, but a positive act, the natural and inevitable consequence of which was to cast the water of this run upon the plaintiff’s land. This was the gravamen of his complaint. The defendant denied the principal allegation, and upon this-issue of fact the case was submitted to the jury. So far as we can discover, it was not tried on any other theory; therefore, [222] the only question we are called upon to consider is, whether there was any competent evidence to sustain the essential averments of the plaintiff’s statement. He does not pretend that the change was made pursuant to any ordinance .or resolution of the borough council, and when he rested his case there was no evidence, certainly none of a positive nature, that it was made by any one having any connection with the borough government. The defendant then showed that it was made by one William Oliver, whose sister owned the property in which the new channel was dug. The plaintiff intimated that the change was made for the benefit of that property. “Well they changed it,” he says,.“to keep it from coming down through under their property.” Oliver testified that he, to quote his exact language, “ had three teams at the time doing a great deal of hauling, and to get over the stream this box was put in.” It is true he was a member of the street committee of the borough council at the time, but his testimony that he was not authorized by any one connected with the borough government to do the work, and did not even talk to the members of his committee about it, is uncontradicted. He took the responsibility on himself and made the change to serve his own, or at least, private purposes. On general principles it is necessary, in order to make a municipal corporation impliedly liable on the maxim respondeat superior for the wrongful act of an officer, that it be shown that he was its officer either generally or as respects the particular wrong complained of; and also that the wrong was done by such officer while in the legitimate exercise of some duty or power of a corporate nature which was devolved on him by law or by the direction or authority of the corporation. 2 Dill. Mun. Corp. sec. 974. It is too plain for argument that it is not within the scope of the authority of a single member of a borough council, although he may also be a member of the street committee, to act for the borough in such a matter as this. The liability of the borough must be placed on some other ground than that Mr. Oliver was its servant or agent, and that his act was its act. Is the borough liable upon the principle that a ratification is equivalent to previous authority and relates back to the time of the performance of the act in question? We do not assert that a municipal corporation may not adopt or ratify a wrong done [223] in its behalf by one not its agent, and thereby become liable as if it had directed it. Passing without further comment the question whether this wrong was done in behalf of the borough, it is well settled in the law of master and servant that ratification can only be inferred from acts which evince clearly and unequivocally the intention to ratify and not from acts which may be readily and satisfactorily explained without involving such intention. This principle applies with increased force to a case where ratification or adoption of the act in question is urged as a ground upon which to hold a municipal corporation liable for a tort committed by one not its agent. As we have shown, the borough neither gave direction, nor granted permission, to divert this water course from its natural channel, nor, so far as appears, did its street commissioner do any act after it had been diverted by Oliver which tended in the slightest degree to continue or maintain the diversion. All that he did was calculated to mitigate the consequent injury, not to perpetuate it. The cause of action, as set forth in the plaintiff’s statement, was not that the means adopted by the borough to keep the water from injuring his premises were inadequate, and it is •doubtful whether an action could be maintained upon that ground, if the borough was in no way responsible for the existing conditions these acts were intended to remedy. See Gift v. Reading, 3 Pa. Superior Ct. 359, 364, Sullivan v. Pittsburg, 5 Pa. Superior Ct. 357, and Bealafeld v. Verona Borough, 188 Pa. 627. There remains, then, simply, the failure of the borough to compel a restoration of the stream to its natural channel. This, of itself, was not such evidence of an adoption or ratification of the wrong as would make the borough liable as a trespasser ab initio. It follows that the defendant’s second point should have been affirmed. There is a wide difference between the commission of an act, which, whether committed by a municipal corporation or by a private person, would be an actionable nuisance, and the mere failure of the corporation to exercise its charter power to abate nuisances, not rendering its streets unsafe, and for the creation of which it was in nowise responsible : 2 Dill. Mun. Corp. sec. 951; McDade v. Chester, 117 Pa. 414. The judgment is reversed.