Evidence that the plan on which a sewer has been constructed by
municipal authorities had not been judiciously selected is
inadmissible to support an action against the municipality by the
owner of land injured by the overflow of water from the sewer.
This was an action against the District of Columbia by a citizen
and taxpayer in Washington to recover damages caused to his house
and land fronting on Missouri Avenue, in the summer of 1877, by the
overflow of foul water from a sewer in that avenue, which the
declaration alleged that the defendant knowingly constructed and
continued upon an unreasonable and defective plan and of inadequate
capacity for its purpose, and wrongfully permitted to become choked
up. The defendant denied its liability.
The plaintiff's bill of exceptions stated that he testified that
at the time alleged, his house and land were overflowed and injured
by foul water from this sewer; that he noticed that the water in
the avenue was very deep, and that he never saw or knew of any
flooding or overflow of the avenue or of his property until the
sewer was constructed. The rest of the bill of exceptions was as
follows:
"And to sustain further the issues joined, the plaintiff put
upon the stand as his witness Benjamin Severson, a citizen of
Washington and an engineer by profession, who testified to the
Tiber sewer's being two feet lower at its base than the Missouri
Avenue sewer where they meet each other, and being asked by the
counsel for the plaintiff what, in his opinion, the consequence
would be in case of a freshet or great fall of rain, the question
was objected to by the counsel of the defendant unless the counsel
for the plaintiff stated his object in asking such question, and
thereupon it appeared that it was asked with the view of showing by
that witness that the plan on which the sewer had been constructed
by the authorities of the
Page 118 U. S. 20
District had not been judiciously selected, and thereupon the
testimony was objected to, and the court, after argument, sustained
the objection, to which ruling the plaintiff's counsel
excepted."
The jury returned a verdict for the defendant, the exceptions
were overruled by the court in general term, and the plaintiff sued
out this writ of error.
MR. JUSTICE GRAY, after stating the case as above reported,
delivered the opinion of the Court.
The duties of the municipal authorities in adopting a general
plan of drainage and determining when and where sewers shall
Page 118 U. S. 21
be built, of what size and at what level, are of a
quasi-judicial nature, involving the exercise of
deliberate judgment and large discretion and depending upon
considerations affecting the public health and general convenience
throughout an extensive territory, and the exercise of such
judgment and discretion in the selection and adoption of the
general plan or system of drainage is not subject to revision by a
court or jury in a private action for not sufficiently draining a
particular lot of land. But the construction and repair of sewers
according to the general plan so adopted are simply ministerial
duties, and for any negligence in so constructing a sewer or
keeping it in repair the municipality which has constructed and
owns the sewer may be sued by a person whose property is thereby
injured. The principal decisions upon the subject are collected in
the briefs of counsel, and generally, if not uniformly, support
these propositions. The leading authorities are the judgments of
the Supreme Judicial Court of Massachusetts, delivered by Mr.
Justice Hoar in
Child v. Boston, 4 Allen 41, 51-53, and of
the Court of Appeals of New York, delivered by Chief Justice Denio,
in
Mills v. Brooklyn, 32 N.Y. 489, 495-500.
In
Barnes v. District of Columbia, 91 U. S.
540,
91 U. S. 556,
it was said that in
Rochester White Lead Co. v. Rochester,
3 N.Y. 463,
"the city was held liable because it constructed a sewer which
was not of sufficient capacity to carry off the water draining into
it. The work was well done, but the adoption and carrying out of
the plan was held to be an act of negligence."
But this was clearly a mistake, for in the
Rochester
case, the fact was distinctly found that the insufficiency of the
culvert to carry off the water was owing not merely to the
smallness of its size, but to "the want of skill in its
construction," 3 N.Y. 465, and the case was distinguished on that
ground in
Mills v. Brooklyn, 32 N.Y. 499. The question in
judgment in
Barnes v. District of Columbia, as well as in
Weightman v.
Washington, 1 Black 39, was of municipal liability,
not for an injury to property by a sewer, but for a personal injury
to a traveler by a want of repair in the highway, a question not
now before us. In
Barton v. Syracuse, 36 N.Y.
Page 118 U. S. 22
54, also cited for the plaintiff, the ground of action was not
the plan of constructing the sewer, but the neglect to keep it in
repair.
In the present case, the only evidence offered by the plaintiff,
which was excluded by the court, was evidence of what, in the case
of a freshet, or of a great fall of rain, would be the consequence
of the difference in level between the sewer in question and
another sewer connecting with it, and this evidence, as the
plaintiff's counsel avowed, was offered "with the view of showing
that the plan on which the sewer had been constructed by the
authorities of the District had not been judiciously selected." The
evidence excluded was clearly inadmissible for the only purpose for
which it was offered. As showing that the plan of drainage was
injudicious and insufficient, it was incompetent. As bearing upon
the question whether there was any negligence in the actual
construction or repair of the sewer, or the question whether the
sewer was so constructed as to create a nuisance upon the
plaintiff's property, it was immaterial. The instructions given to
the jury are not reported, and must be presumed to have been
accurate and sufficient.
Judgment affirmed.
