Harbison v. City of Hillsboro

BEAN, J. — At the close of plaintiffs’ case the defendant moved for a nonsuit on the ground that there was not sufficient evidence to justify submitting the case to the jury, in that plaintiffs’ right to use the ditch and flow waters over the Corrieri lands was but a mere license, subject to such use as might be made by the owner of the Corrieri land and his grantee; that if the use of the ditch or lands of Corrieri by Corrieri, or another by his permission, interfered with plaintiffs’ use, such use constituted a revocation of the license in so far as such use interfered with plaintiffs’ enjoyment of the privilege; that plaintiffs had not proved a grant or easement; and that the damage, if any, had been caused from surface waters. The motion was denied. At the close of the case defendant asked for a directed verdict for defendant, which was denied. Practically the same questions were raised by requested instructions by defendant, which read as follows: No. 3. “Plaintiffs are not entitled to recover damages, if any, from the City of Hillsboro resulting by reason of the surface and spring waters not draining from their land, caused by some act of the defendant committed upon Corrieri iands, unless plaintiffs themselves, or their predecessors, paid to the owner of the Corrieri lands some consideration or did some act in connection with said ditch of material benefit to the owner of the Corrieri lands before the city acquired — 265 — a right, if yon find it did acquire a right, to use said ditch and overflow the Corrieri lands.” No. 4. “Corrieri, as the owner of the land known as the Corrieri tract, had a legal right to permit the City of Hillsboro to use the ditch on his lands and to overflow his lands and to deposit sewage thereon, and if such use by the city of Hillsboro interferes with the drainage of surface and spring waters from the Harbison lands, resulting in damages to the Harbison lands, or crops, plaintiffs cannot complain in this action and cannot recover from the city unless plaintiffs or their predecessors, paid to the owner of the Corrieri lands some consideration for the use of said ditch, or some material benefit resulted to the owner of the Corrieri lands from the ditch constructed by plaintiffs’ predecessors, before the city acquired a right to use the ditch and overflow the Corrieri lands.” No. 12. “ * * If you find that plaintiffs have a right to the use of the ditch on the Corrieri lands, that right would not prevent Corrieri from receiving water and sewage from the City of Hillsboro and overflowing his lands, provided such water and sewage did not interfere with plaintiffs’ right in said ditch, but if Corrieri received said water and sewage from the city, and was to control the same, and permitted the same to flow into the ditch of plaintiffs, or in which they had a right, to their injury, Corrieri, and not the city, would be liable.” The charge given by the court to the jury read in part thus: “I instruct you that the owner of lands is entitled to have and enjoy for the benefit of his lands, unobstructed, the natural drainage facilities thereof, not only upon his property but upon other property adjoining and contiguous. In other words, an adjoining owner or one owning lands below, across which the natural course or direction of drainage exists naturally, or any other person, has no right to obstruct or hinder the natural drainage so as to injure or damage — 266 — the owner of such lands; such right is a natural one and appurtenant to the land. And I wish you to hear this suggestion in mind during all of the instructions I shall give you upon the subject of ditches and drainage. ’ ’ After instructing the jury at length the court summarized as follows: “The City of Hillsboro has no right to deposit upon the lands of Corrieri in said ditch, or contiguous thereto, so it will run into said ditch, sewage from its sewers so as to obstruct the rights of plaintiffs, provided that the owners of said lands upon which such ditch is constructed, constructed the ditch upon the natural course and direction of the drainage of such lands affected by the ditch, or if the ditch was constructed in a direction or course which was not the natural course or direction of the drainage of the lands affected by the ditch but that the ditch was constructed by plaintiffs’ predecessor in title under an agreement and by payment of a consideration for the right to, or the owner of the Corrieri lands, at the time of its construction, received some substantial benefit from the construction and maintenance thereof, the defendant would not have the right to use such ditch in such manner as to obstruct the drainage system of the plaintiffs so as to cause them injury or damage; but if constructed not in the natural course of drainage hy permission of the owner, without payment of a consideration therefor, or without its construction resulting in a substantial or material benefit to the owner of the lands, it would be a mere license and revocable and not assignable, and it was such that the defendant would'have a right, under the authority • of the owner of the Corrieri lands, to deposit its sewage thereon and therein without being liable in damages to the plaintiffs; but the plaintiffs wpuld have no right, in this case, to complain of any use made by the City of Hillsboro of the Corrieri lands, or the ditch on and below the same, unless such use interfered with some legal right of the plaintiffs such as — 267 — is necessary for yon to find existed in plaintiffs under the rules I have given you. ’ ’ 1. The contents of the charge of the court to the jury which we have quoted discloses that the substance of the requested instructions Nos. 3 and 4, was included in the charge, so that defendant cannot complain in that regard. 2. Bequest No. 12 would shift the responsibility for the care of the water and sewage from the city sewer, from the municipality to Corrieri for the reason that under certain conditions he agreed to keep the ditch in repair. The City of Hillsboro is authorized by its charter (Section 36) to raise money for the construction, maintenance and repair of sewers. After the construction of its sewer system, the duty as to the control, use and repair of the system is purely ministerial. The city having assumed the control and management of the sewer and drain, was bound to use reasonable diligence and care to keep such sewer and drain in good repair, and is liable in damages to any property injured by its failure in this respect: 9 R. C. L., p. 670, §§ 62, 63. This corporate duty imposed upon the city cannot be avoided and cast upon Corrieri or anyone else: Hosford Transp. Co. v. Portland, 70 Or. 366 (141 Pac. 1016). For this reason requested instruction No. 12 was properly refused 3. The attempted arrangement with Corrieri in regard to clearing out the ditch in so far as it affects this case, stands on no different footing than if anyone else had agreed with the city to do such work and failed. The City of Hillsboro is liable for wrongfully permitting water to flow from its sewers upon abutting property, causing damage thereto, or for — 268 — damage from sewage which percolates to private property from its sewer. It is immaterial whether the contents of the sewer are discharged directly on the property of an individual, or at such a point that the sewage and other refuse taken along with it must necessarily he carried there by a conduit or gravitation: 9 R. C. L., p. 672, § 64; Joyce, Law of Nuisances, §§284-286; Ulmen v. Mount Angel, 57 Or. 547 (112 Pac. 529, 36 L. R. A. (N. S.) 140); 20 L. R. A. (N. S.) 1050, note; Spangler v. San Francisco, 84 Cal. 12 (23 Pac. 1091, 18 Am. St. Rep. 158); Ft. Wayne v. Coombs, 107 Ind. 75 (7 N. E. 743, 57 Am. Rep. 82); Bates v. Westborough, 151 Mass. 174 (23 N. E. 1070, 7 L. R. A. 156); 61 L. R. A. 701, note; 61 L. R. A. 702, note; Good v. Altoona City, 162 Pa. St. 493 (29 Atl. 741, 42 Am. St. Rep. 840); 1 L. R. A. 296, note. 4. The main contention of the defendant, city, is that plaintiffs, Harbisons, did not have a permanent right to the ditch over the lands of Crandall, -Corrieri and others, hut only a revocable license which it claims was terminated by virtue of the grant and agreement of Corrieri. As we understand the stipulations between Corrieri and wife with the city, they did not contemplate that the use of the ditch leading from Harbison’s land over the lands of Crandall and Corrieri by the three owners, should be disturbed, but that the city would enlarge the ditch if necessary, so as to take care of its sewage and water from its sewers. 5. The water drained from the Harbison land is surface water. The testimony tended to show that the company ditch of Harbison, Crandall and Corrieri was constructed by them pursuant to a mutual arrangement for the purpose of draining their respective land into the Tualatin River, and it was used for — 269 — and served such, purpose to their mutual benefit. Therefore, Thorne, the predecessor of Corrieri in the ownership of the Corrieri tract, and Corrieri received a material benefit by reason of the construction and maintenance of the company ditch. There was also testimony showing that the company ditch was dug along the natural course of drainage from the Harbison land over the other tracts to the river. Under the instructions the jury was warranted in finding that the license from the owner of the Corrieri land was not revocable, and that the grant from Corrieri to the city did not terminate the right of Harbison to use the drainage ditch over the Corrieri land. There was testimony indicating that prior to the intrusion of city water and sewage this ditch constituted a full, complete and adequate drainage for all that part of Fair Acres alleged in the complaint to have been damaged; that the influx of city water and sewage was the direct and proximate cause of plaintiffs’ inability to drain the lands, or to produce crops upon the most fertile portion of their farm; also testimony in support of the allegations of the complaint in other respects. Therefore the requests of defendant for a nonsuit and for a directed verdict were properly refused. 6. Counsel for the defendant invoke the following rule, which we quote from their brief: “Rights of Owners of Dominant and Servient Estates With Reference to Surface Waters. Common-law Rule. Surface water is to be regarded as a common enemy, and the proprietor of the lower tenement or estate may, if he chooses, obstruct and hinder the flow of such water, and in doing so may turn it back upon and over the lands of others wdthout liability for injury ensuing from such obstruction or diversion.” — 270 — Counsel for plaintiffs suggest the following civil-law rule announced in Rehfuss v. Weeks, 93 Or. 25, 32 (182 Pac. 137). It was there stated: “The requested instruction ignores the rule as to surface water. A portion of the water in question appears to come within such designation. The defendant as a land owner, had the right to turn or expel upon the land of an adjacent owner, surface water that would naturally flow there, and in such quantities as would naturally drain in such direction, without liability for damages: Whitney v. Willamette Ry. Co., 23 Or. 188 (31 Pac. 472); Davis v. Fry, 14 Okl. 340 (78 Pac. 180, 2 Ann. Cas. 193, 69 L. R. A. 460); 5 M. A. L., § 469, p. 354. The owner of upper lands is not prohibited by the rule from cultivating his lands or draining them by artificial ditches, though surface water is thereby precipitated more rapidly upon the lands of the adjacent owner below, provided he does not cause water to flow on such lands which, but for the artificial ditches, would have flowed in a different direction, and provided he acts with a prudent regard for the interests of such adjacent owner: 30 Am. & Eng. Ency. of Law (2 ed.) 337; Angelí on Watercourses (6 ed.), p. 122 et seq.; Anderson v. Henderson, 124 Ill. 164, 170 (16 N. E. 232); Wood v. Moulton, 146 Cal. 317 (80 Pac. 92).” 7. A land owner has the right to protect his premises from surface waters by causing the same to flow by the natural and necessary course to adjoining lands, subject to the limitation that he cannot rightfully coll¿ct surface waters on his premises in a reservoir and then discharge the same on to the land of another to his injury. A person on whose land surface water coming from his own and other lands collects in a natural basin or depression and there remains except in seasons of drought, has the legal right to rid his land of the water by causing the same, by such means as may be reasonably necessary, to — 271 — flow in the natural course of drainage on to adjoining lands, though the water may from thence, by natural or artificial means for which he is not responsible, reach and spread ont over the lands of others. In such a case the land owner effecting the drainage of his land by means of a ditch is only in the exercise of the right of every person to defend his premises against surface water, and for consequential damages to other land owners the latter have no remedy against the former: Shaw v. Ward, 131 Wis. 646 (111 N. W. 671, 11 Ann. Cas. 1139); Rehfuss v. Weeks, 93 Or. 25 (182 Pac. 137). 8. It would, we think, be difficult to apply the common-law rifle in regard to surface water so as to permit the city to obstruct the drain in question with sewage. Such an act would not improve the Corrieri tract of land in any way. The deposit of sewage in the drain in question and allowing the same to remain without proper drainage thereof cannot be considered an improvement in any respect. The right to use a watercourse for surface drainage does not give a city the right to drain sewage therein: City of Henderson v. Robinson, 152 Ky. 245, (153 S. W. 224). 9, 10. Different states adopt the different rules as to drainage of surface water in the improvement of adjoining tracts of land, as will best suit the prevailing conditions. In New Hampshire, one of the states favoring the common-law rule, a land owner may disturb the natural drainage only to the degree necessary in the reasonable use of his own land, and what is such reasonable use is ordinarily for the jury to determine under appropriate instructions: Gould on Waters, p. 539, § 265. Cities are held to be governed by the same rules as govern natural persons with respect to the drainage of surface waters, except that they may resort to the right of eminent domain: — 272 — 9 R. C. L., p. 684, §78; Smurr on Farm Drainage, § 14; Nevins v. City of Peoria, 41 Ill. 502 (89 Am. Dec. 392). Under either rule no act should he done by the proprietor of land inconsistent with the due exercise of dominion over his own land: Cooley on Torts (2 ed.), p. 684. 11. In Smurr on Farm Drainage, Section 3, we find this language: “Under the rule of the civil law, which has found favor in most of the common-law courts of England and of this country, where two fields adjoin and one is lower than the other, as between the owners of such adjacent lands, the owner of the lower ground has no right to erect embankments or to do anything that will stop the natural flow of water thereto from the upper land, nor anything that will cast it back upon the land above; such lower field being necessarily subject to all the natural flow of water from the upper field: That is, the owner of the higher tract of land has the right to have the surface water flowing or coming naturally upon his premises by rains or melting snows pass off the same through the natural channels upon or over the lower or servient estate, and the owner of the dominant heritage may make such drains and ditches for agricultural purposes on his own lands as may be required by good husbandry, although by so doing the flow of water may be increased in the natural channels which carry the water from the upper to the lower fields; and no one has the right to complain that the volume of water in its natural channels is increased by the artificial drainage of lands which naturally drain therein.” The reason, or the theory, of this rule is based upon nature itself, or, in other words, nature has ordained that surface waters should follow the natural slope or contour of the earth’s surface, and the civil law has adopted that rule because it is the natural one: Smurr on Farm Drainage, §§ 4, 5; Kauffman v. Griesemer, 26 Pa. St. 407 (67 Am. Dec. 437, 440). — 273 — The law of this state favors the drainage of land. It provides: “When any person, firm or corporation owning land which requires draining, or any incorporated town or city, in which there is any ditch, standing water or surplus water requiring draining, has no means of draining such ditch, standing water or surplus water, and objection is made by the owners of adjacent land to the construction thereon or thereover of necessary means of drainage, such person, firm, corporation or municipal corporation, may make application in writing to the county court in which such land, town or city is situated, for the right of way or privilege to cut or dig or construct sufficient means of drainage over said adjacent land; * * ” Section 9553, Or. L. In the present case the owners of the company ditch were able to adjust the matter of right of way for their ditch by agreement without proceeding under the statute. No person is allowed to tap or bring water into a ditch without paying a reasonable compensation therefor: Section 9560, Or. L. The interest of the people of this state demands that as far as possible all of the swamps, marshes, swales and wet land that can be successfully and conveniently drained and reclaimed should be permitted so to be treated, having due regard for the rights of owners of adjacent land. Water seeks its level. The rule that would best serve in this state, and tend to promote the interest of the people without causing undue hardship, would be to allow the owner of land to turn upon the land of an adjacent owner surface water in such quantities as would naturally drain in that direction by means of artificial drainage even though the flow of such water upon the lower tract is accelerated, due regard being observed for the interest of the adjacent owner so as to cause no unreason — 274 — able inconvenience: Whitney v. Willamette Bridge Ry. Co., 23 Or. 188, 192 (31 Pac. 472). 12. The charge to the jury in the present case fully and fairly submitted the questions in accordance with the law of this state. We approve the instructions. 13. According to the verdict, the City of Hillsboro connected its sewer with a private drain, overtaxing its capacity, and allowed material to accumulate and obstruct the flow of water causing it to flow back on private property of plaintiffs; and the city is liable for the damage: Joyce on Nuisances, §§ 300, 313; Owens v. City of Lancaster, 182 Pa. St. 257 (37 Atl. 858); Blizzard v. Danville, 175 Pa. St. 479 (34 Atl. 846). We do not deem it necessary to discu'ss the other assignments of error. The judgment of the trial court is affirmed. Affirmed. Burnett, C. J., and Brown and McCourt, JJ., concur.