
    Common Pleas Court of Montgomery County.
    Henry L. Dierker v. City of Dayton.
    Decided May 7, 1931.
    
      L. B. McIlhenny, for the plaintiff.
    
      J. B. Harshman, city attorney, and Herbert S. Beane, assistant city attorney, for defendant.
   White, J.

This case comes before the court on demurrer to the petition. The ground of the demurrer is that the petition does not state facts sufficient to constitute a cause of action.

A reading of the petition discloses that it is an action for damages in the sum of $400, brought by the plaintiff against the defendant, in which the plaintiff charges that the agents and servants of the defendant, while engaged in the paving of an alley adjacent to plaintiff’s lot caused a wall along side of said alley to become undermined, which fell or is about to fall, thereby causing damage to the plaintiff’s real estate.

The defendant is a municipal corporation. It is the contention of the defendant that the demurrer should be sustained because the negligence complained of in the plaintiff’s petition is the alleged negligent act of the city, a municipal corporation, acting through its ag-ents and servants in the paving of the said alley, and because the making of, the improvements to an alley is a governmental function of a city, and that the city is not liable for the acts of negligence of its agents and servants, while the city is engaged in a governmental function.

It is the contention of the plaintiff that under Section 114 of the city charter of the city of Dayton, Ohio, this suit may be maintained. A question arises at the outset as to whether or not this court will take judicial notice of the ordinances and charter of a charter city. A decision to the effect that judicial notice will be taken of the adoption of a charter by a city by a Court of Appeals sitting in that city was held in the case of Stange v. Cleveland, 25 C. C. (N. S.), 599, and while the court may take judicial notice that a charter was adopted and as to the form of the government under which the court was sitting, yet that court does not say that it will take judicial notice of the provisions of the charter nor the ordinances of the city passed in pursuance thereof. It is my judgment that where a cause of action is based upon a provision of a city charter or upon ordinances passed by a city, that it is the duty of the one relying upon these ordinances to specially plead them. I do not believe that the Court of Appeals meant to place the burden either upon its or upon judges of the Court of Common Pleas or inferior courts to search the records of a municipality, in the county in which they may be sitting, to determine what the contents of a city charter, as of the Village of Oakwood or the city of Dayton, in Montgomery county, are, and thereby determine what the provisions of the charter and the ordinances are or where they are to be found.

But without deciding this question, as our views of the matter do not require that it be determined, we proceed to examine the question as to the liability' of a municipal corporation for the negligence of its officers, agents and servants while the said city and its agents are engaged in the performing of a governmental function. It seems to me to be quite clear that the paving of alleys within a municipal corporation is the same as paving streets or highways, and that in legal contemplation there can be no difference in liability of the city.

The Supreme Court of the state of Ohio, in the case of the City of Wooster v. Arvenz, 116 Ohio St., 281, held:

“1. Streets and highways are public and governmental institutions, maintained for the free use of all citizens of the state, and municipalities while engaged in the improvement of streets are engaged in the performance of a governmental function.
“2. Section 3714, General Code, imposes upon municipalities the obligation to keep streets, alleys, and other highways within the municipality open, in repair, and free from nuisance; the legislation imposing this duty is an exercise of the sovereignty of the state, and municipalities as creatures of the same sovereignty are subject to the liability which follows a failure to discharge that, duty.
“3. The duties and obligations thus imposed are in derogation of the common law and must therefore be strictly construed, and the provisions of that legislation cannot by implication or interpretation be extended to make a municipality liable for the negligence of its servants while engaged in the act of making improvements to streets, unless such negligence relates to a condition of the street itself and the damage is caused by a defective condition thereof.”

Chief Justice Marshall, in delivering the opinion of the court, at p. 287, says:

“By that enactment (referring' to Section 3714, General Code) the Legislature of Ohio has removed all doubt as to the public character of streets and alleys within municipalities, and by the same token it has become firmly established that the maintenance of streets, alleys and other highways is the performance of a governmental function. The liability having only been imposed for a failure to keep' streets in repair, the provisions of that section cannot be by implication or interpretation extended to make the municipality liable for the negligence of its servants while engaged in the act of making improvements to its streets and alleys.”

The instant case does not come within the exceptions mentioned by the Chief Justice in the above quotation, as the only allegation contained in the petition and the basis of the suit is the negligence of the city acting through its agents and servants in the improvement of the alley adjacent to the property of the plaintiff by paving the said alley.

In the case of Spieker v. Board of Rapid Transit Commissioners of City of Cincinnati, 37 Ohio App., 102, the plaintiff claimed damages due to the necessity of changing the improvements upon his property in order to meet with the change of grade, and the court held that the city was not liable by reason of the failure of plaintiff to comply with Section 3818 and 3823 of the General Code.

The third syllabus of that case is as follows:

“Improving of street is a governmental function.”

The section of the charter of the city of Dayton upon which the plaintiff relies is Section 114 and reads in part as follows:

“An owner of a lot or of land bounding and abutting upon a proposed improvement claiming that he will sustain damage by reason of the improvement shall present such clairh to the Board of Revisions of Assessments within two weeks after the service of notice or the completion of the publication hereinbefore provided. Such claim, shall be in writing and shall set forth the amount of damage claimed, with a general description of the property with respect to which it is claimed the damage will accrue and shall be filed with the Board of Revision of Assessments. Any owner who fails to do so shall be deemed to have waived such damages, and shall be barred from filing a claim or receiving damages therefor. This provision shall apply to all damage which will obviously result from the improvement, but shall .not deprive the owner of his right to recover damages arising without his fault from the acts of the city or its agents,” etc.

It will be seen by comparing the above language with the language contained in Section 3823 of the General Code that it is very similar, if not quite identical. Section 3823 of the General Code reads in part as follows:

“An owner of a lot, or of land, bounding or abutting upon a proposed improvement, claiming that he will sustain damages by reason of the improvement, within two weeks after the service of the notice or the completion of the publication thereof, shall file a claim in writing with the clerk of the council, setting forth the amount of the damages claimed, with a general description of the property with respect to which it is claimed the injury will accrue. An owner who fails to do so, shall be deemed to have waived such damages and shall be barred from filing a claim or receiving damages. This provision shall apply to all damages which will obviously result from the improvement, but shall not deprive the owner of the right to recover damages arising, without his fault, from the acts of the corporation, or its agents,” etc.

Neither the provisions of Section 114 of the charter of the city of Dayton, nor the section of the General Code above quoted give to the plaintiff a right to bring an action for damages which does not already exist. In other words, neither of these provisions create any new right of action, but limit the enforcement of any such right as does exist to the ones who file their claims with the proper authorities within the time limits provided.

In the case of the City of Cleveland v. Cleveland Stone Company et al., 13 O. N. P. (N. S.), at 209, the court in discussing the effect of Section 3823 of the General Code in its opinion says:

“This section however, does not create any right to damages but its purpose is to limit the enforcement of such right to those who file their claims for damages within the time specified. All who do not do so are deemed to have waived damages. Under the decisions in this state, the right to damages for change of grade exists independently of any statutory provisions; and indeed, the earlier decisions which established what is known as the Ohio Doctrine on this subject were made before there was any statute relative to such damages.”

There is a division of authorities, or, rather, an apparent division of authorities in the cases cited by counsel for plaintiff in his brief; but no matter what is stated in those cases, we believe that the latter pronouncements of the Supreme Court of the state of Ohio, as contained in the case of City of Wooster v. Arvenz, 116 Ohio St., 281; and the case of Spieker v. Board of Rapid Transit Commissioners, 37 Ohio App., 102, are determinative of the issues in the instant case. The division of authorities is discussed by Chief Justice Marshall in his opinion in the Arvenz case, at p. 287, and after discussing and citing the case of City of Dayton V. Glaser, 76 Ohio St., 471, and the case of City of Circleville v. Sohm, 59 Ohio St., 285, he sums up the matter in this language.

“By the weight of authority, as well as upon principle, we have reached the conclusion that streets and highways are public and governmental institutions, that in the absence of statutes there will be no liability for failure to maintain them, that it is only by reason of statutes that municipalities have been held responsible in damages for injuries caused by defects in streets, and that this statutory liability by its terms extends only to damages caused by defects in the streets themselves, and does not extend to the negligence of the agents and servants of the city while in the act of making repairs and improvements.”

In the case of Hamilton v. Dilley, 120 Ohio St., 127, cited’and quoted by plaintiff’s counsel, in his brief, it is only necessary to refer to the case to discover that it is' sought in that case to hold the city liable under the provisions of the General Code, that is, under Section 3714 for a nuisance placed in a street by the city, and it is easily distinguishable from the Arvenz case in that it is based squarely on the statute requiring a municipality to keep the streets in repair and free from nuisance, and not upon the negligence of the agents and servants of the city while in the act of making repairs and improvements to a street.

For the reasons above stated, the demurrer is sustained.  