Abstracts construction of a sewer according to a plan which is palpably bad, though the execution of the plan may have been skillful. Same Care and Maintenance-Instructions. In an action against a city to recover damages for injury to property from the negligent construction of a sewer, it was proper to instruct the jury that when the city undertakes to construct a sewer it is its duty to exercise ordinary care and skill to keep it in condition to carry off the water collected thereby from such rainfalls as may be reasonably expected to occur in the neighborhood to be drained by such sewer." Same Same When Notice of Defective Condition Not Necessary.— Where the initial construction of a sewer by a city is manifestly defective, notice to the city of the defect is not a prerequisite to its liability for injury to property resulting therefrom. Accrual of Right of Action Limitation. The right of action against a city for injury from the flooding of property by the negligent construction of a sewer accrues when the property is flooded, and limitation runs only from that date. Appeal from circuit court, Jefferson county, common pleas division. "To be officially reported." Action by M. Norris against the city of Louisville to recover damages for injury to property. Judgment for plaintiff, and defendant appeals. Affirmed. H. L. Stone, for appellant. Samuel Kirby, for appellee. O'REAR, J. This is an action to recover of the city for the negligent construction of certain sewers, by reason of which appellee's property was flooded and damaged. The questions are: (1) Is the building of sewers by a city a legislative act, for which it will not be liable, even if it be an imprudent one? (2) Does the five-vear statute of limitation of this state apply from the date of the construction or from the date the injury is received? I. Generally, a city will not be liable for error of judgment in its legislative body in doing a legislative act. Whether a necessity for a given improvement of a highway exists is clearly one for the legislative departments of the city to decide; also the character of the improvement is within the legislative discretion, subject to the qualification that the plan adopted must be one not so palpably inefficient as to indicate want of care, or to imply a failure to exercise judgment by the city governing body. So, when a municipality determines to change the natural order of things, by altering the surface. drainage, and collecting it into artificial channels, it cannot fail to use ordinary good judgment in adopting the plan of the work, without liability to any injured thereby. If the plan adopted is palpably bad, it will not excuse the city from resulting damage to private property to show that the execution of the plan was skillful. Gould v. City of Topeka, 32 Kan. 485, 4 Pac. 822, 49 Am. Rep. 496; McClure v. City of Red Wing, 28 Minn. 194. 9 N. W. 767; Teager v. City of Flemingsburg (Ky.) 60 S. W. 718. On this point the trial court instructed the jury thus: "When the city undertakes to construct a sewer, it is its duty to exercise ordinary care and Abstracts skill to keep it in condition to carry off the water collected thereby from such rainfalls as may be reasonably expected to occur in the neighborhood to be drained by such sewer." This application of the law on that subject is approved. Appellant claims that, to be liable, the city must have had notice of the defects in the plan adopted by it, and that this notice should have been in the form of complaint by property owners after the defect had become apparent by experiment; in other words, that the city would not be liable for the first instance of damage, however heavy. The doctrine of notice invoked doubtless is that applying to cases where an improvement was properly made, but had afterwards become insufficient from accident, or sudden and unexpected change, without the knowledge of the city. But, where the initial construction is manifestly deficient for the purposes intended, -that is, in the language of the instruction given, was not such as "ordinary care and skill" would suggest in order to "carry off the water collected from such rainfalls as may be reasonably expected to occur in that neighborhood,"-notice need not be given the city. One must take notice of his own lack of care, and cannot rely upon being first warned of the dangers it threatens. Barton v. City of Syracuse, 36 N. Y. 54. 2. It being settled that the liability imposed under the foregoing was for the wrongful or negligent act of the city, constituting a nuisance (Wood, Nuis. § 385), the complaining lot owner was not compelled to sue till the damage had been done. His action was for damages sustained at the date of the flooding of his property. Limitation should date from that event. City of Louisville v. O'Malley (Ky.) 53 S. W. 287. The judgment is affirmed. Angus v. City of Hartford. McKone v. Same. (Supreme Court of Errors of Connecticut, May 29, 1901.) Street Improvements-Property Owners-Assessments—Necessity of Notice-Validity. Where a vote was passed by the proper body for the paving of a street between certain points after publication of notice thereof in a newspaper, and by written or printed notice mailed to the property owners on the street 10 days before any action was taken, as required by Sp. Laws 1895, p. 617, ?? 1, 2, as amended by Sp. Laws 1899, p. 504, % 1, but thereafter such vote was reconsidered and rescinded, and a subsequent vote was passed ordering the paving of such street for a greater distance without notice by publication or mail to property owners, the assessment for such paving on the property benefited was void, since, as the second vote related to a different taxing district, affecting different persons, giving notice before passing the second vote was an essential requisite, the omission of which made it of no binding force. Cases reserved from court of county; William S. Case, Judge. common pleas, Hartford Abstracts Suits by William Angus and Patrick McKone against the city of Hartford to restrain enforcement of an improvement assessment. Demurrers to the complaints, and question as to judgment reserved for the advice of the supreme court of errors. Demurrers overruled. Arthur L. Shipman, for plaintiff Angus. Edward L. Smith and John J. McKone, for plaintiff McKone. William J. McConville, for defendant. ANDREWS, C. J. (after stating the facts). The plaintiff is the owner of land abutting on Capitol avenue, in Hartford. The city paved that street with asphalt, and made an assessment for benefits upon the abutting lands, and has caused a lien to be filed in the town records of the town of Hartford upon and against the land of the plaintiff to secure the payment of his said assessment. The complaint avers that the assessment is illegal and void, and claims an injunction to restrain any steps to collect or to foreclose the said lien. The city demurred to the complaint. The question of what judgment shall be rendered upon the demurrer is reserved for the advice of this court. The complaint alleges two distinct grounds of action: 1. That the assessment was made under the special act of 1895 (Sp. Acts 1895, p. 617, as amended by Sp. Acts 1899, p. 504), and the city apportioned the amount of benefits assessed between the persons benefited upon the basis of the number of feet of land owned by each abutting proprietor in proportion to the entire frontage upon that portion of the street paved, and that the plaintiff had no opportunity to be heard in reference to the benefits assessed upon his land, and was not in fact heard. It also alleges as a fact the conclusion of law that the special act authorizes an assessment in such manner, and the plaintiff's grievance is based on this assumption. The special act is an amendment to the city charter, and must be construed in view of the existing charter provisions as to the assessment of betterments. While it may to some extent modify those provisions, we incline to think it substantially leaves them in force and applicable to the assessment for street pavements authorized by the act. The decisive questions as to this ground of action are not presented by the complaint and demurrer with requisite clearness. Before we were asked to pass judgment by way of advice, the complaint should have been reformed, the allegations of law stricken out, and those of fact made more definite. This is immaterial, however, inasmuch as our opinion upon the other ground of action must finally dispose of this case. 2. That the vote ordering the street in question to be paved, and the vote assessing the abutting property owners, including the plaintiff, were passed without giving the notice to property owners interested required by the special act. The complaint avers that the board of street commissioners of Abstracts Hartford, which in this connection means the city itself, on or about the 14th day of February, 1900, selected Capitol avenue, from Main street to the Park river, to be paved with asphalt during the season of 1900; that notice was given by publication in the daily newspapers of the city, and, so far as was practicable, by written notices addressed to the property owners interested, in their own places of abode, and deposited in the post office, postage paid, at least 10 days before any action was taken, as by law provided; that on June 13, 1900, the street commissioners passed votes ordering Capitol avenue to be paved with asphalt from Main street to Park river, and assessing two-thirds of the expense of said pavement upon the abutting property owners; that on or about June 20, 1900, the said votes of June 13th were reconsidered and rescinded, and that without any further notice by publication, or written or printed notice as above set out, votes were passed ordering Capitol avenue to be paved from the west line of Lafayette street to Park river; that on or about June 27, 1900, these votes of June 20th were submitted to and approved by the court of common council; that on or about November 26, 1900, the city made an assessment upon the plaintiff's land to pay a portion of the cost of said pavement, to wit, $459.82. These averments are all admitted by the demurrer, and, because of these averments, we think the demurrer should be overruled. It was competent, without any doubt, for the street commissioners on June 13, 1900, to pass votes ordering Capitol avenue to be paved from Main street to the Park river, and assessing two-thirds of the expense on the abutting landowners. A taxing district had been fixed, and the persons who were or ought to be subject to the assessment had been made known, and due notice had been given to all such persons. These votes, however, were on June 20th reconsidered and rescinded. The whole matter then was in the condition it was before any votes at all had been made. Subsequent votes ordering Capitol avenue to be paved from the west line of Lafayette street to Park river were passed without notice by publication or by mail to the plaintiff. These votes related to a different taxing district from the one embraced by the votes of June 13th. Different persons were affected by the assessment. The apportionment of the benefits and expenses was different. It was a new matter, --in legal contemplation, different from the one dealt with by the former votes. The charter required the board of street commissioners to give notice before passing these votes just as much as before the passage of the votes of the 13th, and, as they omitted to give any notice, we think they omitted an essential requisite, and that these votes are without any binding force. The assessment is void. The court of common pleas is advised to overrule the demurrer. The same advice is given in the McKone case. The other judges concurred. Abstracts Parrotte v. City of Omaha et al. (Supreme Court of Nebraska, Dec. 4, 1900.) Opening Street-Special Taxation.-The mayor and council of cities of the metropolitan class have authority to raise, by special taxation of property benefited, a fund to defray the cost and expense of opening a street within the corporate limits. Same-Same-Injunction.-A party seeking to enjoin the collection of a special tax has the burden of showing that the taxing power was not lawfully exercised; or that there are fatal infirmities in the proceedings leading up to the tax levy. (Syllabus by the Court.) Error to district court, Douglas county; Powell, Judge. Action by Mary H. Parrotte and others against the city of Omaha and others. Judgment for defendants, and Parrotte brings error. Affirmed. Francis G. Hamer, for plaintiff in error. W. J. Connell, for defendants in error. SULLIVAN, J. The constitution (article 9, § 6) provides that "the legislature may vest the corporate authorities of cities, towns and villages, with power to make local improvements by special assessment, or by special taxation of property benefited." The Omaha charter, enacted in pursuance of this provision of the fundamental law, conferred upon the mayor and council the authority which they assumed to exercise in opening Twenty-Ninth avenue, and in raising a fund with which to defray the cost and expense of the improvement. It may be, as counsel claims, that there are fatal infirmities in the proceedings leading up to the tax levy; but, if so, the record does not disclose them. The mayor and council had power to levy and collect the tax in question, and in cases of this kind the burden is on the plaintiff to show that such power was not lawfully exercised. The judgment is affirmed. Meyer v. City of Covington. (Court of Appeals of Kentucky, Sept. 25, 1901.) Judgment for Cost of Street Improvement - Reversal - Amended Petition-Curative Ordinance.-A judgment enforcing a lien for the cost of a street improvement having been reversed because the lot sought to be subjected was not sufficiently described in the petition on the return of the case, the lower court properly permitted plaintiff to file an amended petition specifically describing the lot and setting out an amended ordinance curing some supposed defects in the previous assessment. Appeal from circuit court, Kenton county. "Not to be officially reported." Action by the city of Covington against John Meyer to enforce a lien for the cost of a street improvement. Judgment for plaintiff, and defendant appeals. J. M. Dial, for appellant. F. J. Hanlon, for appellee. Affirmed. |