122 provements or their maintenance, the rule varies. In those jurisdictions where the common-law rule prevails, namely, that surface water is a common enemy which the owners of all lower estates are permitted to contend with in the manner they deem best, a public corporation will not be held liable for acts by which the flow of surface water has been diverted or changed in such a manner as to occasion damage.12 In other states where the civil law is in force, that rule will regulate the action of public corporations in the construction or maintenance of improvements. This rule, as will be remembered, is to the effect that each lower estate is regarded as a servient one and is bound to permit surface water to pass over it in the manner and the channels in which it is naturally accustomed.123 Salem, 134 Mass. 351. But see Turner v. City of Indianapolis, 96 Ind. 51; Coots v. City of Detroit, 75 Mich. 628, 5 L. R. A. 315. Dissenting opinion. Wild v. City of Paterson, 47 N. J. Law, 406. 122 Corcoran v. Benicia, 96 Cal. 1, 30 Pac. 798; Lampe v. City & County of San Francisco, 124 Cal. 546, 57 Pac. 461; Byrne v. Town of Farmington, 64 Conn. 367, 30 Atl. 138; City of Vincennes v. Richards, 23 Ind. 381; Weis v. City of Madison, 75 Ind. 241; City of Evansville v. Decker, 84 Ind. 325; Thibodaux v. Town of Thibodaux, 46 La. Ann. 1528, 16 So. 450; Gardiner v. Inhabitants of Camden, 86 Me. 377, 30 Atl. 13; Turner v. Inhabitants of Dartmouth, 95 Mass. (13 Allen) 291; Keith v. City of Brockton, 136 Mass. 119; Breuck v. City of Holyoke, 167 Mass. 258, 45 N. E. 732; Rice v. City of Flint, 67 Mich. 401; Alden v. City of Minneapolis, 24 Minn. 254; Follmann v. City of Mankato, 45 Minn. 457, 48 N. W. 192; Dudley v. Village of Buffalo, 73 Minn. 347, 76 N. W. 44; Churchill v. Beebe, 48 Neb. 87, 66 N. W. 992, 35 L. R. A. 442; City of Kearney v. Themanson, 48 Neb. 74, 66 N. W. 996; Wakefield v. Newell, 12 R. I. 75; Murray v. Allen, 20 R. I. 263, 38 Atl. 497; Jordan v. City of Benwood, 42 W. Va. 312, 26 S. E. 266, 36 L. R. A. 519; Hoyt v. City of Hudson, 27 Wis.. 656; Waters v. Village of Bay View, 61 Wis. 642; Hart v. City of Baraboo, 101 Wis. 368, 77 N. W. 744. See, also, § 999, post. Addy v. City of Janesville, 70 Wis. 401, 35 N. W. 931. But if a municipal corporation acts without lawful authority in making an improvement, it will be liable for the injury caused by the accumulation of surface water. 123 Arn v. Kansas City, 4 McCrary, 558, 14 Fed. 236; City of Albany v. Sikes, 94 Ga. 30, 20 S. E. 257, 26 L. R. A. 653; Correll v. City of Cedar Rapids, 110 Iowa, 333, 81 N. W. 724; Podhaisky v. City of Cedar Rapids, 106 Iowa, 543; Bowman v. New Orleans, 27 La. Ann. 501; Miller v. City of Morristown, 47 N. J. Eq. 62, 20 Atl. 61; Town of Union v. Durkes, 38 N. J. Law, 21; Elliott v. Oil City, 129 Pa. 570, 18 Atl. 553; Smith v. City of Alexan § 978. Nonliability for exercise of discretionary or legislative power. The rule of nonliability is also based, in some cases, upon the principle that if a public corporation in the exercise of some of its lawful powers, particularly the making of improvements, in a careful and skillful manner, causes consequential damages, it cannot be held responsible because they are the direct results of the exercise of a legislative, discretionary power.124 § 979. Liability imposed as result of negligence. The rule of nonliability, it has been said, presupposes the performance of the duty of the exercise of the power in a careful and skillful manner. Where the work has been negligently done, or the duty performed in some respect in a careless, unskillful and negligent manner,125 whereby injury is caused through the accumulation of surface waters upon private property,126 or by the collection, diver dria, 33 Grat. (Va.) 208; Gillison v. City of Charleston, 16 W. Va. 282. See, also, § 999, post. But see Freburg v. City of Davenport, 63 Iowa, 119; Knostman & Peterson Furniture Co. v. City of Davenport, 99 Iowa, 589, 68 N. W. 887; Gilfeather v. City of Council Bluffs, 69 Iowa, 310. 124 Bronson v. Borough of Wallingford, 54 Conn. 513, 9 Atl. 393; Roll v. City of Augusta, 34 Ga. 326; Templeton v. Voshloe, 72 Ind. 134; Davis v. City of Crawfordsville, 119 Ind. 1, 21 N. E. 449; City of Cumberland v. Willison, 50 Md. 138; Kennison v. Beverly, 146 Mass. 467; Lee v. City of Minneapolis, 22 Minn. 13; Stewart v. City of Clinton, 79 Mo. 603; Miller v. Morristown, 47 N. J. Eq. 62, 20 Atl. 61; Byrnes v. City of Cohoes, 67 N. Y. 204; Watson v. City of Kingston, 114 N. Y. 88, 21 N. E. 102; Paine v. Village of Delhi, 116 N. Y. 224; Bush v. City of Portland, 19 Or. 45, 23 Pac. 667; City of Allentown v. Kramer, 73 Pa. 406; Noble v. Village of St. Albans, 56 Vt. 522; Heth v. City of Fond du Lac, 63 Wis. 228, 23 N. W. 495. But see Weis v. City of Madison, 75 Ind. 241; Freburg v. City of Davenport, 63 Iowa, 119; Boston Belting Co. v. City of Boston, 149 Mass. 44; Gilluly v. City of Madison, 63 Wis. 518, distinguishing Heth v. City of Fond du Lac, 63 Wis. 228, 23 N. W. 495. 125 City of Denver v. Rhodes, 9 Colo. 554, 13 Pac. 729; Benson v. City of Wilmington, 9 Houst. (Del.) 359, 32 Atl. 1047; Burton v. City of Chattanooga, 75 Tenn. (7 Lea) 739; Jordan v. City of Mt. Pleasant, 15 Utah, 449, 49 Pac. 746. See, also, § 999, post. 126 Arn v. Kansas City, 14 Fed. 236; City of Dixon v. Baker, 65 Ill. 518; City of New Albany v. sion and discharge of them upon private property in such a manner as to occasion injury,127 whatever may be the rule adopted, whether common-law or civil law, the corporation will be held responsible for the damages it may have caused.128 The authorities, however, are conflicting. Natural watercourse. A liability will also follow where a natural watercourse has been negligently obstructed or destroyed.129 It is true, however, in this respect as in all cases where the ques Lines, 21 Ind. App. 380, 51 N. E. 346; City of Seymour v. Cummins, 119 Ind. 148, 5 L. R. A. 126; City of Frostburg v. Dufty, 70 Md. 47; Ashley v. City of Port Huron, 35 Mich. 296, reviewing many authorities. O'Brien v. City of St. Paul, 25 Minn. 331; Gross v. City of Lampasas, 74 Tex. 195, 11 S. W. 1086; City of Dallas v. Cooper (Tex. Civ. App.) 34 S. W. 321. V. 127 Gilmer v. City of Montgomery, 26 Ala. 665; Larrabee v. Town of Coverdale, 131 Cal. 96, 63 Pac. 143; Brown v. City of Atlanta, 66 Ga. 71; Nevins v. City of Peoria, 41 Ill. 502; Town of Princeton Geiske, 93 Ind. 102; Hoffman v. City of Muscatine, 113 Iowa, 332, 85 N. W. 17; Cahill v. City of Baltimore, 93 Md. 233, 48 Atl. 705; City of Frostburg v. Dufty, 70 Md. 47, 16 Atl. 642; Manning v. City of Lowell, 130 Mass. 21; Rychlicki v. City of St. Louis, 98 Mo. 497, 11 S. W. 1001, 4 L. R. A. 594; Flanders v. City of Franklin, 70 N. H. 168, 47 Atl. 88; Bradt v. City of Albany, 5 Hun (N. Y.) 591; Butler v. Village of Edgewater, 53 Hun, 633, 6 N. Y. Supp. 174; Byrnes v. City of Cohoes, 67 N. Y. 204; Vogel v. City of New York, 92 N. Y. 10; Weir v. Borough of Plymouth, 148 Pa. 566, 24 Atl. 94. 128 City of Eufaula v. Simmons, 86 Ala. 515, 6 So. 47; Lehn v. City & County of San Francisco, 66 Cal. 76, 4 Pac. 965; City of Denver v. Rhodes, 9 Colo. 554, 13 Pac. 729; McArthur v. City of Dayton, 19 Ky. L. R. 82, 42 S. W. 343; Hitchins v. City of Frostburg, 68 Md. 100, 11 Atl. 826; Stanchfield v. Newton, 142 Mass. 110; Morley v. Village of Buchanan, 124 Mich. 128, 82 N. W. 802; McAskill v. Hancock Tp., 129 Mich. 74, 88 N. W. 78, 55 L. R. A. 738; Seaman v. City of Marshall, 116 Mich. 327, 74 N. W. 484; Kobbs v. City of Minneapolis, 22 Minn. 159; Robbins v. Village of Willmar, 71 Minn. 403, 73 N. W. 1097; Bedell v. Village of Sea Cliff, 18 App. Div. 261, 46 N. Y. Supp. 226; City of Comanche v. Zettlemoyer (Tex. Civ. App.) 40 S. W. 641. 129 City of Helena v. Thompson, 29 Ark. 569; Los Angeles Cemetery Ass'n v. City of Los Angeles, 103 Cal. 461; Kansas City v. Slangstrom, 53 Kan. 431, 36 Pac. 706; Parker V. City of Atchison, 58 Kan. 29, 48 Pac. 631; Lalanne v. Savoy, 29 La. Ann. 516; Parker v. City of Lowell, 77 Mass. (11 Gray) 353; Biggio v. City of Boston, 179 Mass. 356, 60 N. E. 938; Boston Belting Co. v. City of Boston, 149 Mass. 44; McClure v. City of Red Wing, 28 Minn. 186; Buchanan v. City of Duluth, 40 Minn. 402, 42 N. W. 204; Stoehr v. City of St. Paul, bert v. City of St. Paul, 68 Minn. tion of negligence arises, that the liability is dependent upon the facts alleged in each case to constitute negligence. Where the watercourse is obstructed by third parties, no liability can arise on the part of the public authorities.130 The rule stated in the first of this paragraph equally applies to obstructing natural watercourses by bridges or culverts.131 980. Notice of injury or damage. In some states where either by rule or statute a liability is imposed upon a public corporation to enable the one injured to successfully maintain an action, it is provided by law that a notice of the claim must be given to designated officials and within a prescribed time. This subject has been fully treated in other portions of this work. 182 The question has arisen whether such provisions apply both to injuries to persons and property or to either alone.133 The application is determined largely by the phraseology of the statute though it is held in some cases that 54 Minn. 549, 56 N. W. 250; Tau519, 71 N. W. 664. No liability will result if the damage is caused by an unusual storm. Boye v. City of Albert Lea, 74 Minn. 230, 76 N. W. 1131. It is within the corporate powers of the city of Albert Lea to dam the waters of the Shellrock river. Flanders v. City of Franklin, 70 N. H. 168, 47 Atl. 88, City of Beatrice v. Leary, 45 Neb. 149, 63 N. W. 370; West Orange Tp. v. Field, 37 N. J. Eq. (10 Stew.) 600; Ordway v. Village of Canisteo, 66 Hun, 569, 21 N. Y. Supp. 835; Rider v. City of Amsterdam, 31 Misc. 375, 65 N. Y. Supp. 579; Noonan v. City of Albany, 79 N. Y. 470; Haynes v. Burlington, 38 Vt. 350. 130 Stockhouse v. City of Lafay ette, 26 Ind. 17; Callahan v. City of Des Moines, 63 Iowa, 705; City of Kansas City v. Brady, 52 Kan. 297, 34 Pac. 884, affirmed 53 Kan. 312, 36 Pac. 726; Lander v. Bath, 85 Me. 141, 26 Atl. 1091; Perry v. City of Worcester, 72 Mass. (6 Gray) 544; City of Beatrice v. Knight, 45 Neb. 546, 63 N. W. 838; Haynes v. Town of Burlington, 38 Vt. 350. 131 City of Helena v. Thompson, 29 Ark. 569; Mootry v. Town of Danbury, 45 Conn. 550; Kansas City v. Slangstrom, 53 Kan. 431; Wheeler v. City of Worcester, 92 Mass. (10 Allen) 591; McClure v. City of Red Wing, 28 Minn. 186; Young v. Kansas City, 27 Mo. App. 101; Haynes v. Town of Burlington, 38 Vt. 350; Barden v. City of Portage, 79 Wis. 126, 48 N. W. 210. But see Diamond Match Co. v. Town of New Haven, 55 Conn. 510, 13 Atl. 409. See, also, Barnes v. City of Hannibal, 71 Mo. 449. 132 See §§ 484 et seq., ante, and §§ 1037, 1061 et seq., post. 133 Cohen v. City of New York, 33 Hun (N. Y.) 404. the term "damages" in referring to a notice necessary to be given applies only to injuries to property." § 981. Damages. 134 When a plaintiff is successful in actions based on negligence, the damages recovered may be compensatory, punitive or both. Where the defendant is, however, a public corporation, it is not common to allow the recovery of other than compensatory damages,135 although by statute the rule may be otherwise.130 § 982. Liability in respect to highways. The greater number of questions in connection with the subject of negligence of public corporations arise in respect to the duty to keep highways in a reasonably safe and fit condition for use, in a proper manner, by those entitled to the right. There are many conflicting decisions and to some extent a liability is created only by and, therefore, dependent upon the construction of some statutory provision. § 983. Of quasi corporations. The distinction between quasi corporations and municipal corporations proper is important and the determining element in a large number of adjudications. Public quasi corporations, it will be remembered, are regarded as mere political agencies having an arbitrarily imposed form of government, their duties strictly enjoined and limited by law and with simple conditions existing 134 City of Warren v. Davis, 43 Ohio St. 447. See, also, §§ 1037 & 1061 et seq., post. 135 Wilson v. Town of Granby, 47 Conn. 59; Burr v. Town of Plymouth, 48 Conn. 460; City of Chicago v. Martin, 49 Ill. 241; City of Chicago v. Langlass, 52 Ill. 256; City of Jacksonville v. Lambert, 62 Ill. 519; City of Chicago v. Kelly, 69 Ill. 475; Bennett v. City of Marion, 102 Iowa, 425, 71 N. W. 360; City of New Orleans v. Heres, 23 La. Ann. 782; Littlefield v. Inhabitants of Biddeford, 29 Me. 310; Sanford v. Inhabitants of Augusta, 32 Me. 536; Stover v. Inhabitants of Bluehill, 51 Me. 439; Horrigan v. Inhabitants of Clarksburg, 150 Mass. 218, 22 N. E. 897, 5 L. R. A. 609; Farrelly v. City of Cincinnati, 2 Disn. (Ohio) 516; Raymond v. Keseberg, 91 Wis. 191, 64 N. W. 861. Liability limited to $5000. But see Whipple v. Walpole, 10 N. H. 130. 136 Swift v. Berry, 1 Root (Conn.) 448. |