
    CHANGE IN THE FLOW OF SURFACE WATER.
    Circuit Court of Hamilton County.
    The City of Cincinnati v. Patrick McLaughlin et al.
    Decided, February 3, 1909.
    
      Municipal Corporations — Liability of, for Injury to Property — By Increased Flow upon it of Surface Water — Measure of Damages— Negligence not Necessary as a Basis of Action — Discretion as to the Order of Admitting Testimony — Charge of Court.
    
    1. Where damages are claimed on account of an increased flow of surface water upon the premises of the plaintiff, it is immaterial whether or not the wrong was due to negligence or otherwise.
    2. The measure of damages to property due to increasing the flow upon it of surface water is the cost of restoration to its former condition, and where cost of restoration and necessary repairs are both allowed the latter should he eliminated from the verdict.
    3. It is not an abuse of discretion to permit the admission of evidence out of order, when the court at the time states to opposing counsel that they may offer evidence to meet it.
    4. Where in the charge to the jury the eourt speaks of damages resulting from or by reason of the acts complained of, other acts are necessarily excluded.
    
      Dudley V. Sutphin, Assistant City Solicitor, for plaintiff in error.
    
      Peck, Shaffer & Peck, contra.
    Giffen, J.; Swing, P. J., and Smith, J., concur.
   The consequences of the acts of the defendant in causing an increased flow of. water upon plaintiff’s property, and not the manner of performing such acts, constitute the wrong inflicted, and it is immaterial whether, the acts were done negligently or otherwise.

The admission of evidence out of order is not reversible error, unless abuse is shown, and none appears in allowing the deposition of Mr. Critchell to be read. The court at the time stated to counsel for defendant that he might offer such evidence as he had to meet anything contained in the deposition.

The refusal to give special instruction No. 1 requested by defendant, if erroneous, was cured by giving special instruction No. 3 requested by defendant, and by the general charge of the court upon the subject of extraordinary and unprecedented storms.

Special instructions Nos. 2 and 4 requested by the plaintiffs correctly state the law of the case. The evidence discloses no necessity for emptying the eight-inch pipe on the hillside back of plaintiffs’ premises; but on the contrary at least two of defendant’s witnesses testify that with little expense such pipe could have been connected with an existing sewer.

These two charges restrict the liability of the city to damage directly caused by its own wrongful acts. As said in the case of the City of Hamilton v. Ashbrook, 62 O. S., 511, at 518:

“A city may be held in damages for failure to perform its contracts, for wrongs which it prepetrates and for omissions of duties imposed upon it by law. ’ ’

The wrong in this case consists in unnecessarily collecting and casting upon plaintiffs’ premises more surface water than would naturally flow thereon.

The objection to that part of the general charge beginning in the middle of page 374 of the bill of exceptions was afterwards answered and satisfied by the court at the request of counsel for plaintiffs, as appears- on page 377.

It is further claimed that the court did not limit the right to recover for injury resulting from the acts complained of in the petition, but included all acts within twenty-one years that tended to increase the flow of water upon plaintiff’s premises; but it does not so appear in the charge, as the court expressly refers to damages “resulting from” or “by reason of” the acts complained of, which excludes necessarily all other acts. The plaintiffs were entitled to use and enjoy their property in its natural state, unless changed by contract or prescription, and if the acts set forth in the petition increased the flow of water over the natural flow, and damage resulted thereby, they were entitled to recover.

Of course if other acts of the city or of a third party caused the increased flow of water, and the acts complained of were not the direct' cause, there could be no recovery, and we do not understand the charge to be open to any other construction. •

The charge of the court, on the measure of damages, that plaintiffs could recover cost of necessary repairs between February 19, 1906, and April 11, 1907, and the cost of restoring the property to the condition it was in at the time the injuries they 'complain of began, would seem to permit a recovery of the cost of restoration in double measure, first, under the head of repairs; second, under the general head of restoration. If the court had told the jury to allow all repairs necessary during the period named to preserve the property and also the further cost- of restoring the property to its condition before the injuries were sustained, not exceeding the difference in value of the property, there could be no objection;, but the charge reads as follows:

"You have a right to take into consideration the age of the building and repairs necessary to place it in the condition the house was at the time before the' acts from which it suffered occurred. The sound rule to guide you as to damages is, he is entitled to the cost of restoring the property to the condition it was in at the time that the injuries he complains of .began.” .

The cost of repairs necessary to place the house in its former condition, and the- cost of restoration to that condition are one and the same thing. If both are allowed, then a recovery is twice had for the same injury.

The special findings of the jury indicate that they were misled by this charge, as they found the cost of restoration to be $525, while the difference in the market value of the property'" on Febraary 19, 1906, and. on April 11, 1907, was only $400,'and rendered .a general verdict for $925. They probably' included in the cost of restoration repairs necessary to preserve the property from further injury; and we think the amount of the verdict should be reduced to $525, the cost of restoration found by the jury, and unless such reduction be consented to by defendants in error the judgment will be reversed. The evidence as'to the proximate cause of the injuries sustained is conflicting,' but not to that extent that would justify us in holding that the verdict in favor of plaintiffs is not sustained by sufficient evidence. .

The remarks of counsel for plaintiffs in his argument to the jury charging the suppression of a deposition and deception in reading only half of an answer in a deposition are not justified by the evidence, and therefore, reprehensible; but we think that justice in this ease does not require a reversal of the judgment on that ground.  