Handfelder v. East Side Levee & Sanitary District

Mr. Presiding Justice McBride delivered the opinion of the court. Abstract of the Decision. 1. Drainage, § 112*—duty as to persons outside of district. A levee and sanitary district which is organized for the express purpose of “draining property, protecting it from overflow, and for sanitary purposes” owes the duty to one outside its district to construct its levees in such a manner as not to obstruct the natural flow of surface water from such premises. 2. Drainage, § 112*—liability for flooding lands outside of district. A levee and sanitary district which, in the construction of a levee, exercises reasonable care to furnish an outlet for surface waters from land adjoining the district equal to that existing before the construction of the levee, is not liable to a tenant of such adjoining land for damages due to overflow. 3. Drainage, § 112*—when overflow not due to act of God. In an action against a levee and sanitary district by a tenant of adjoining premises outside the district for damages to crops and other property due to overflow, evidence held to sustain a finding that the damage was not due to an “act oí God,” where the only outlet was a pipe which was of insufficient dimensions which became clogged with refuse, although the rainfall was unusually heavy. 4. Drainage, § 112*—right of tenant outside of district to recover for flooding of land. A tenant of lands outside a sanitary and levee district may sue and recover for the loss to crops and other property occurring from the negligence or wrongful act of a levee and sanitary district in the construction of a levee resulting in the flooding of tenant’s land after an extraordinary flood, although the crops were planted after the levee was constructed. 5. .Action, § 61*—what constitutes a continuing nuisance. The failure of a levee and sanitary district to provide a proper and sufficient outlet for the escape of surface water -from adjoining land outside the district, so that a tenant of such adjoining land may have as sufficient an outlet for "the drainage of surface waters due to extraordinary floods as existed before the erection of the levee, constitutes a continuing nuisance for which successive suits may be maintained. 6. Drainage, § 112*—when overflow from adjoining premises not adequately provided for. In an action against a levee and sanitary district to recover damages due to overflow, evidence held sufficient to sustain a finding that a twenty-four inch pipe through the levee did not furnish an outlet for water coming from adjoining premises outside the district, equal to that existing prior to the construction of the levee. 7. Drainage, § 112*—what evidence admissible in action for overflow. Evidence that there were stalks in the intake end of an outlet pipe of a levee, constructed for the passage of surface water from land adjoining a levee and sanitary district, is admissible in an action by a tenant of such premises for damage to his crops and other property alleged to be due to “negligent construction” of such levee. 8. Drainage, § 112*—evidence admissible in action for overflow. Evidence in an action by a tenant of premises outside a levee and sanitary district against such district for damages to his crops and other property alleged to be due to the failure to provide a proper outlet for surface water, that in stages of high water the river would rise higher than the intake end of the pipe through the levee, is admissible. 9. Evidence, § 233*—when weather burean records inadmissible. The records of the weather bureau at St. Louis that the greatest rainfall occurring in over forty years occurred during a particular storm are inadmissible to prove conditions existing in Madison county in an action by a tenant occupying premises outside a levee" and sanitary district against such district for damages to his crops and other property, alleged to be due to the accumulation of water as a result of the improper construction of outlets in the levee for the passage of surface water. 10. Appeal and error, § 1566*—when erroneous instruction harmless The giving of an erroneou.s instruction relating to the measure of damages does not constitute reversible error when it is not assigned as error that the damages awarded are excessive.