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ing of them. Receiving and giving or refus 6. MUNICIPAL CORPORATIONS-DRAINS-DAMing them, and allowing the aggrieved party


Where, in an action by a property owner an exception, is in effect giving the special

against a city for damages owing to the disleave to present them that is provided for in charge of surface waters from a ditch upon the rule. The rule does not mean that leave her property, the complaint alleged that the must be obtained to present requests later,

water was surface water from ordinary rains,

evidence that the water in question resulted but that requests presented later cannot be

from extraordinary rains was admissible under entertained without the leave of the court. the general denial.

Upon the undisputed facts the plaintiff had 6. SAME-EVIDENCE-EXTRAORDINARY RAINS. not been accepted by the defendant as a pas

In an action against a city by a property

owner for damages from surface water dissenger at the time of the accident, and had

charged upon her property from a ditch, error himself abandoned the intention of becoming in refusing to admit evidence that the water one upon hearing the announcement by the resulted from extraordinary rains was prejudiconductor. The court, therefore, properly

cial. instructed the jury that the defendant was

On rehearing. For former opinion, see 74 bound to exercise ordinary care only. See

N. E. 518. Reversed.
Webster v. Fitchburg R. R., 161 Mass. 298, 37
N. E. 165, 24 L. R. A. 521; Jones v. B. &

HADLEY, J. Action for damages for neg. M. R. R., 163 Mass. 245, 39 N. E. 1019.

ligently causing the overflow of the plainExceptions overruled.

tiff's lot. Proceeding under the act of 1899 (Acts 1899, p. 164, c. 109), now repealed, but the provisions here involved in substance re

enacted in 1901 (Acts 1901, p. 449, c. 203, CITY OF VALPARAISO V. SPAETH.

88 6899, 6900, Burns' Ann. St. 1901), 50 free. (No. 20,534.)

hold voters of Center township, Porter coun

ty, in which township the city of Valparaiso, (Supreme Court of Indiana. Dec. 12, 1905.)

of 6,000 inhabitants, is located, on April 24, 1. MUNICIPAL CORPORATIONS-IMPROVEMENTS

1899, filed with the board of county commis-LIABILITY-STREETS. Burns' Ann. St. 1901, 88 6899, 6900, in

sioners their petition for the improvement, relation to the improvement of highways, pro by grading and graveling, of a certain highvides that, where any road to be improved is way in said township which extended into in the corporate limits of any city, the board

the corporate limits of said city, and which of county commissioners must, before publishing the report of the engineer and viewers, ob

extension within the city was over Camptain of the common council of the city their bell street, a north and south unimproved consent to the improvement in the city, which street, to Haas street, a distance of more sball be shown by a copy of the record of the meeting of the council ordering the making of

than 80 rods. Whereupon the commissioners the improvement. Section 3623 gives common

appointed a surveyor and reviewers, who councils of cities absolute dominion over the proceeded under the law to view, survey, streets of the city. Held, that an order of a

establish grade, and make a profile of decity council consenting to the improvement of a highway extending into the city makes the

tails, determine the quality and depth of board of county commissioners the agent of the gravel and cost of improvement, and on city in the improvement of that part of the May 16, 1899, filed with the commissioners highway within the city limits, and the city is liable for a faulty improvement effected under

their report, as required by the statute. For the supervision of the county commissioners.

the grade of the street the surveyor and 2. SAME-CHANGE OF GRADE-WATERS.

viewers adopted the grade established by the Where a city in improving a street col city council in December, 1895, by ordinance. lects water in large quantities in an artificial

The common council of appellant city having channel, and provides no outlet, whereby the water is thrown upon the lands of an abutting given its consent to said improvement and owner, made lower than the street by reason

ordered it to be made, as provided by secof the improvement, the city is liable therefor. tion 2 of said act of 1899, the county com

[Ed. Note.-For cases in point, see vol. 36, missioners ordered an lection, which re. Cent. Dig. Municipal Corporations, 88 1784,

sulted in a majority vote of the township, in1785.]

cluding the city, being cast in favor of the 3. SAME-EXTRAORDINARY RAINS. A city in constructing side ditches, cul

proposed improvement, as exhibited by the verts, and outlets for surface water on the plans and profile made by the surveyor and improvement of a street is only required to viewers. A contract was let by the comprovide for such waters as may be reasonably

missioners, and the improvement completed expected to fall, and which are not the result of rains of extraordinary character.

and accepted in July, 1901. Eighty rods south [Ed. Note.-For cases in point, see vol. 36,

of the Grand Trunk Railroad, Campbell Cent. Dig. Municipal Corporations, 88 1778,

street is intersected by Pearl street, running 1779.]

east and west. The west end of the plain4. APPEAL-HARMLESS ERROR-DEMURRER. tiff's lot abuts on Campbell street, and the

There is no error in sustaining a demurrer north side thereof on Pearl street. Between to a paragraph of an answer where all the evi

the Grand Trunk Railroad and Pearl street, dence admissible und:r it was admissible under the general denial.

and east of Campbell street, the general [Ed. Note.-For cases in point, see vol. 3, slope and drainage of 8 to 10 or more acres Cent. Dig. Appeal and Error, $8 4093, 4094.1 is to the southwest, with frequent slight

elevations and depressions in the surface. surface water in the grading of its streets Campbell street at the crossing of the Grand is the question to be decided in this case." Trunk is about 25 feet higher than at the Preliminary to the principal question, apwest line of plaintiff's property. Before the pellant's attorney argues that, as the proceedimprovement of Campbell street, the storm ing was begun before, and accomplished by water falling on said 8 to 10 acres, flowing the agents of the county commissioners under south and westwardly, found its way along authority conferred by the Legislature, and the depressions, and between the plaintiff's that without any agency, oversight, or active lot at Pearl street and the Grand Trunk, participation of the city, the latter is not crossed Campbell street througb two culverts, liable for a negligent performance of the one of which some of the witnesses called work, or for the maintenance of a system of a bridge. In the execution of the improve- drainage established by the county under ment, the culverts mentioned were removed legal authority. from Campbell street, the water courses fill 1. In this contention appellant cannot be ed up to grade, and side ditches so made as sustained. In the passage of the act of 1899, to collect and carry in the east side ditch, the lawmakers were very considerate of the down to the neighborhood of the plaintiff's rights of municipalities. Under its proproperty, all the surface water theretofore visions, the authority of the county commisdistributed and discharged to the westward sioners to improve a street in a city, as a part of Campbell street through said culverts. of a country road, is rooted in the consent of Near the southwest corner of the plaintiff's the common council and expressed approval lot is the lowest point for several hundred of a majority of the voters of the city and feet to the south, east, and north, so that township. Under the act, beyond making the surface water flows to this point from the

survey, adopting a grade, a general plan, and south nea: Haas street, from the east along making a profile thereof, the commissioners Pearl street to Academy street, and from have no power to enter the city limits for any the north on Campbell street. The east purpose of the improvement until after they sidewalk of Campbell street, as improved, is have obtained the fullest consent of the city 24 inches high at the northwest corner and council to the pr posed improvement, ex30 inches higher at the southwest corner, pressed in the most unequivocal manner. than the plaintiff's lot, the side ditch 12 inch The following is the language of the law: es lower than the sidewalk, and the crown "Where any road to be improved is in the of the roadway 7 inches higher than the corporate limits of any city, the board of sidewalk. Pearl street, so improved, is al commissioners must, before publishing the so several inches higher than the plaintiff's report of the engineer and viewers, obtain of lot. In the improvement of Campbell street the common council of said city their conno provision whatever was made by any one, sent to said improvement in said city, and nor has any since been made, for the escape of said consent shall be shown by a copy of the the storm water collected and carried to the record of the meeting of said council, either plaintiff's property by the improvement, in regular or special session, ordering that which there accumulated in a large body, said improvement be made." The provision flowed in and upon the plaintiff's lot, flood amounts to this; that when commissioners ed the premises, filled her cisterns and cellar have exhibited to the common council the with foul water and filth carried from the precise plans and specifications of a proposed streets, washed and destroyed the founda improvement, if the council withholds its tion, thereby rendering her dwelling house approval, that is the end of the matter. The uninhabitable, to her great damage, etc. commissioners have no power to proceed

The complaint, alleging, in substance, the further. But if the city is satisfied with the foregoing facts, is in two paragraphs. The plan, and desires the improvement made as first count is upon the negligence of appellant proposed, it seems not sufficient for the in failing to provide a means of escape for council to passively consent, but it must act the large body of surface water collected affirmatively and officially in legal session, and cast upon the plaintiff's premises by the and enter upon its minutes an order that the improvement of Campbell street. The second improvement be made. Such an order, made upon negligence for maintaining a system upon full knowledge of the plans and specof drainage from Campbell and Pearl streets ifications proposed, is equivalent to making whereby no means of escape was provided the improvement the city's own, and, if the for the large body of storm water that was work under such an order is executed accollected, carried, and discharged upon the cording to the exhibited plans and profile, it plaintiff's premises. The case went to trial imposes upon the city the same liabilities as on the general denial and six-year statute if the improvement had been accomplished of limitation. There was a trial by jury, upon its own initiative; or, in other words, and verdict and judgment for appellee. the entry of the order by the city council

There are divers assignments arising up that the improvement be made had the effect on the pleadings and motion for a new trial, of constituting the board of commissioners but appellant's counsel advise us that “the the agent of the city in the improvement law governing municipalities in dealing with of that part of the highway within the city


limits. It follows, therefore, that the city can where many decisions are reviewed by Cooley, find no escape from liability in the fact that J., see Ashley v. Port Huron, 35 Mich. 296 the improvement of Campbell street was 24 Am. Rep. 552. effected under the immediate supervision of There is evidence to the effect that, be the county commissioners. If that improve-fore Campbell street was improved, the prin. ment was faulty, and the plaintiff was dam cipal part of the storm water complained aged by reason of the fault, the city rust of, from 8 to 10 acres lying east of Campbell

street, meandered along natural depressions 2. We now come to the real question for to the south and west, and crossed Campdecision, is appellant liable in damages for bell street through two culverts, about 30 so improving Campbell street as to cause and 40 rods, respectively, north of Pearl surface water to be diverted from its natural street, which former road or street officers and usual flowage, and collected in large had deemed necessary to construct. In makquantity in side ditches, and discharged in ing the improvement, these culverts were rea body upon an abutter's premises, where it moved, the watercourses filled with earth was not accustomed or natural for it to go, to the fixed grade, and a side ditch conwithout providing any means for its escape structed on the east side of the street suftherefrom? The common councils of cities ficient to carry all the surface water disin this state have no absolute dominion over charged into it from the east between the the streets and other highways of the city. Grand Trunk and Pearl street, a distance Section 3623, Burns' Ann. St. 1901. The city of about 80 rods, and near the latter point holds such highways in trust for the public, permitted to flow out upon abutting properand is in duty bound to improve them in such ty and in upon the plaintiff's lot, which after manner as will respond to the necessity and the improvement was completed lay lower convenience of the public in their use as ways than the street, without making any provision of passage. To promote these objects, the for its escape. No one will question the right city, in the improvement of a street, has the of a city to divert surface water from natural right to make cuts in front of some abutter's courses in carrying out a system of municipal property and fills in front of others in pro drainage, but when it collects such water in ducing a proper and common grade. Proper- large quantity in an artificial channel, there ty may be thus injured by being made less by creating a necessity for a new and larger valuable, but, if the work has been done outlet, it is its plain duty to provide it. The skillfully and without negligence, the injury duty to supply an adequate outlet is insepwill be considered as direct and consequen arable from the right to collect the water. tial, and such as the abutter was bound to To permit the assembled waters to descend know, when he made his purchase, was liable in a body through such artificial channel to to happen in the rightful exercise of munic the premises of abutters made lower than the ipal power. For such injuries, it is well street by the improvement is as much an insettled, cities are not liable. City of Evans vasion of private right, as much a trespass ville v. Decker, 84 Ind. 325, 328, 43 Am. Rep. upon private property, as would be the wast86, and cases cited. A city may also con ing of earth and stone from the cuttings upstruct side ditches in cuttings to draw the on the adjacent lots. We think, therefore, water off the crown of the roadway, and it that under the complaint and evidence the is not liable if the water discharged by such jury had abundant grounds for finding that ditches finds its way onto private property ly the improvement of Campbell street was uning lower than the street; in short, it may be skillfully and negligently accomplished, in said that a city is not liable in damages for that it caused the assembling of a large and any injury resulting to abutting property

an unusual amount of storm water near the which is directly and necessarily incident to a

intersection of Pearl street, and provided proper and skillful construction of a street im. no means for it to get away. Both the com


103 ind. 314, 317

, 2 N. JE: 821, and cases eitea: 3. Appellant's Tourth paragraph of answer

But It has been the rule of decision in this was to the effect that the damages for which court for more than 25 years that a municipal the plaintiff sues were caused by an

uncorporation has no right to collect surface precedented rainstorm and flood, which, in water in an artificial channel, and cast it up-contemplation of law, was the act of God. on another's land without providing ade The sustaining of a demurrer to the answer quate means for its escape. Weis v. City of is assigned as error. What has been said Madison, 75 Ind. 241, 248, 39 Am. Rep. 135; above with respect to the duty of municipaliEvansville v. Decker, 84 Ind. 325, 328, 43 Am. ties to provide means of escape for surface Rep. 86; North Vernon v. Voegler, 89 Ind. water in the improvement of its streets does 77; Crawfordsville v. Bond, 96 Ind. 236, 242; not apply to unprecedented rainfalls; that Davis v. Crawfordsville, 119 Ind. 1, 21 N. is, to such downpours or floods as may be E. 449, 12 Am. St. Rep. 361 ; Patoka Tp. v. known to have occurred, but are so unusual Hopkins, 131 Ind. 142, 30 N. E. 896, 31 Am. and extraordinary as that prudent persons do St. Rep. 417; Mitchell v. Bain, 142 Ind. 604, not think of attempting to guard against 618, 42 N. E. 230. For an instructive case, them. Skillful construction of streets in

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this respect seems to mean that such side and before judgment of reversal herein, and ditches, culverts, and outlets must be pro the death of said Wilhelmina Spaeth now apvided for surface water collected and divert pearing to this court for the first time, it is ed from natural ways as are sufficient to now ordered that the judgment of reversal carry the waters that may, from experience rendered in this cause on December 12, 1905, and the previous history of the vicinity, be be set aside, and the same re-entered as of the reasonably expected to fall, and which are date of submission of said cause, to wit, Febnot the result of a cloudburst or other rain ruary 13, 1904. storm of extraordinary character. City of Madison v. Ross, 3 Ind. 236, 54 Am. Dec. 481; City of Evansville v. Decker, 84 Ind. 325, 328, 43 Am. Rep. 86; Los Angeles Cemetery


(No. 5,009.) Ass'n v. City, 103 Cal. 461, 37 Pac. 375; Allen . City, 52 Wis. 430, 9 N. W. 284,

(Supreme Court of Indiana. Jan. 2, 1906.) 38 Am. Rep. 748; City v. Adams, 72 IIL App.


OF APPLICATION, 662; Farnham, Waters, etc., § 182. There

Burns' Ann. St. 1901, § 1337j, subd. 2, fore, if the plaintiff's damages were caused provides for the transfer of a case from the by water cast upon her property by an un

Appellate to the Supreme Court on the grounds

that, the opinion of the Appellate Court conprecedented and extraordinary rainstorm or

travenes a ruling precedent of the Supreme freshet, the city was not liable, and the Court, or that a new question of law is directly fourth paragraph of answer stated a good involved and was decided erroneously, and prodefense. The complaint, however, rests up

vides that the application for the transfer shall

state with particularity the grounds relied on. on the theory that the surface water from

Held, that à petition for transfer "on account ordinary rains was collected, diverted, car of error in the decision of the cause in the ried to, and, for want of an outlet, cast upon,

Appellate Court" is insufficient; the proper and left on, the plaintiff's lot, to her injury practice being to set out the particular decision

of the Supreme Court contravened or the parIf her damage did not result as alleged in

ticular new question of law which was involved the complaint, the city's answer of general and decided erroneously. denial put in issue every fact that went to

Appeal from Circuit Court, Lawrence disprove it. Hence it is that all the evidence

County, Jas. B. Wilson, Judge. that would have been admissible under the

Action by James Lay against the American fourth paragraph of answer was admissible

Quarries Company. On affirmance by the Ap under the general denial, and the error in

pellate Court of a judgment in favor of plainsustaining appellee's demurrer thereto was

tiff (73 N. E. 608), defendant petitions for a harmless.

transfer of the cause to the Supreme Court, But this does not settle the question. On

under Burns' Ann. St. 1901, § 1337), subd. 2. the trial at the proper time, and while the

Petition denied. city's witness was testifying in chief, appel

J. H. Underwood, E. C. Field, and H. R. lant, upon appellee's objection, was denied

Kurrie, for appellant. J. H. Edwards and the right to prove, as it offered to do, and

H. P. Pearson, for appellee. was entitled to do, that the damages sued for were caused by water from an unprec JORDAN, J. This cause having been deedented rain overflowing the plaintiff's prem cided by the Appellate Court adversely to apises. This was prejudicial error. The case pellant, the latter has filed a petition praying is not one of contract, where the court may the transfer thereof to the Supreme Court. sometimes look into the evidence to deter The petition, or application, omitting the mine whether the complaining party has suf- formal parts, is as follows: "The appellant fered from an exclusion of his evidence; in the above cause hereby petitions for the but it sounds in tort, and in all such cases transfer of said cause to the Supreme Court the damages are unliquidated, and the amount of the state of Indiana, on account of error in left to the jury, to be ascertained by them, the decision of said cause in the Appellate under the direction of the court, from a con Court. Subdivision 2 of section 1337), Burns' sideration of all the evidence.

Ann. St. 1901, provides that “said party may It is plain that we cannot say that the

file in the Supreme Court an appli. verdict would have been the same if the cation for the transfer of the case to the Sucourt bad permitted appellant to prove that preme Court on the grounds (1) that the opinthe rain which injured the appellee was of ion of sald division of the Appellate Court a character for which the city was not contravenes a ruling precedent of the Sullable. For this error, the cause must be preme Court; (2) or that a new question of reversed.

law is directly involved and was decided erThe judgment is reversed, and cause re roneously. The application shall state with manded, with instructions to grant appellant particularity the ground or grounds relied a new trial.

on.” It is manifest that the petition or appli

cation in this case wholly fails to comply with PER CURIAM. Upon appellant's petition, the provisions of the above statute, for it and proper showing that appellee, Wilhel states neither of the grounds therein provided mina Spaeth, departed this life on or about for the transfer of a case, and for this reason November 11, 1904, being after this appeal alone the petition must be denied.


An application to remove a case under this to transfer a cause should be sufficient which statute does not perform the office of an ap merely stated the general ground or grounds peal from the Appellate to the Supreme Court, for such transfer in the language of the stat. and in considering such applications the lat ute, with nothing more in particular; for unter court is not required or authorized by der such circumstances the Supreme Court the statute in question to examine the record would be required to search, unaided by the in the case in order to determine whether applicant or his counsel, in order to discover the ground or grounds stated in the petition what particular ruling, precedent, or decision or application are sustained. But in deciding of that court was contravened by the opinion this question the court is limited or con of the Appellate Court, or as to what particfined to the written opinion of the Appellate ular new question of law is involved and unCourt given in the particular case. City of der the opinion of the Appellate Court was Huntington v. Lusch, 163 Ind. 266, 71 N. E. decided erroneously. That such was not the 647, and cases there cited. It will be obsery. intention of the Legislature is apparent, in ed that the statute in question declares in view of the positive declaration that the apexpress and positive language that "the ap plication shall state with particularity the plication shall state with particularity the ground or grounds relied upon by the appli. ground or grounds relied on." This declara cant for the transfer. tion or expression makes it evident, we think, Petition denied. that the Legislature intended that the petitioner should be required to state in his peti. tion, not only the general ground or grounds mentioned in the statute and relied upon for WELLS V. CHRISTIAN et al. (No. 20,559.) a transfer, but in addition thereto, under the (Supreme Court of Indiana. Jan. 2, 1906.) first general ground, the application should 1. MECHANICS' LIENS CONSTRUCTION state or give the particular ruling, precedent, STATUTE MANUFACTORIES HEATING or decision of the Supreme Court contravened


Under Burns' Ann. St. 1901, $ 7255 (Acts by the opinion of the Appellate Court. If

1899, p. 569, c. 255), providing that contractors, the second ground, namely, that a new ques etc., and all persons performing labor, etc., for tion of law is involved in the case and that the erection, altering, repairing, etc., any house, such question was decided erroneously by the

mill, manufactory, etc., may have a lien on the Appellate Court, is relied upon for transfer

house, mill, manufactory, etc., a building equip

ped with machinery for the generation of ring the case, then in addition to such gen steam to be distributed under a municipal fran. eral statement of the ground the application chise through pipes laid in the streets, and supshould specifically or in particular state the

plied for heating purposes is a manufactory.

2. SamE-RIGHT TO LIEN. new question of law which it is claimed is in

Under Burns' Ann. St. 1901, § 7255 (Acts volved. While we do not mean to hold, that 1899, p. 569, c. 255), providing that contractors, in addition to this particular statement, the etc., and all persons performing labor, etc., for applicant is required under the statute in his

the erection, altering, repairing, etc., of any petition to cite or give the authorities to es

house, mill, manufactory, etc., may have a lien

on the house, mill, manufactory, etc., a laborer tablish that under the opinion of the Appel employed to haul away dirt dug out of and to haul late Court such new question of law was de sand to be used in refilling a trench dug in a street cided erroneously, nevertheless a citation of or for a steam pipe connecting a plant for generating

steam to be distributed for heating purposes reference to authorities would certainly be throughout the city is entitled to a lien, irhelpful to and desirable by the court in deter-respective of whether such work was performed mining the question. The interpretation on the particular premises to which the lien which we have accorded to the statute in re

primarily attached, or on the street in front

of the same, or at some point where the owners gard to the particular statement of the

of the plant, owned merely an easement operated grounds relied upon for the transfer of a under à municipal license. cause is, in our judgment, a reasonable and correct exposition of its meaning. If the

Appeal from Superior Court, Marion Counapplicant complies with the requirements

ty; Jas. M. Leathers, Judge. thereof, this court can, to an extent at least,

Action by Nelson Wells against Emma A. be advised and aided by the application or

Christian and others. Judgment for defendpetition in its efforts to determine whether

ants, and plaintiff appeals. Reversed. the ground or grounds upon which a transfer O. E. Fenstermaker, for appellant Spenis requested are sustained. This is essen cer & Spencer, for appellees. tial in view of the fact that there is no statute or rule of court which exacts of the ap MONTGOMERY, J. This action plicant the duty of filing along with his ap brought by appellant to foreclose a mechanic's plication a brief in support thereof; that be lien. The cause was tried by the court, a ing a matter wholly optional with him. special finding made, and conclusions of law

Petitions to remove cases under the provi. stated thereon in favor of appellees. Appelsions of the statute in question have multi lant excepted to the conclusions of law, and plied within the last year, and thereby the predicates his assignment of error upon that labors of the Supreme Court have been great exception. ly increased. It cannot in reason be asserted The appeal directly to this court is by that the Legislature intended that a petition virtue of the provisions of section 1337h,


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