
    CITY OF TULSA v. GRIER.
    No. 13029
    Opinion Filed Dec. 16 1924.
    Rehearing Denied Feb. 9, 1926.
    1. Limitation of Actions — Damages to Real Property — Temporary or Permanent Injury.
    The bar of the statute of limitations is set in motion to a cause of action for damages to-, or trespass u-pon real property caused by the construction of an improvement when the injury decors. Such an injury may be temporary or permanent. When temporary the injury occurs at the time of (he first damage. When permanent, at the rime it becomes obvious that the injury is a permanent one.
    2. Appeal and Error— Sufficiency of Evidence — Judgment.
    Where a suit at law isi submitted to the court withdut the intervention of a jury, the judgment of the trial court will not be disturbed when there is-any competent evidence reasonably supporting ir.
    Error from District Court Tulsa County; Valjean Biddison, Judge.
    Action by Lorenzo Grier against the City of Tulsa. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    I. J. Underwood and H. L. S.- Halley, for plaintiff in error.
    Davidson & Williams and J. J. Henderson, for defendant -in error.
   WARREN, J.

In this case the' defendant in error, Lolrenzo Grier-, brought suit against the plaintiff in error, the city of Tulsa, -because of alleged damage to' his real property located in the city of Tulsa by reason of the -construction by the city of a sanitary sewer, a storm sewer and an embankment for a street, closing the course of what is alleged to have been a well-defined stream.

The -suit was originally filed May 11, 1917. and sued the city for damage because of negligence in constructing the sanitary sewer and in obstructing the fio'w of water -through its natural course down a ravine, by constructing a storm sewer in the bed of the stream and filling it otherwise until the water in -time of unusual freshets could nc-t be carried off thereby.

To this -petition a motion to make more definite and certain was filed by the defendant. This was sustained, and on July 5, 1917, an amended petition was filed expanding the allegations of the original pe-ti cion, but still resting) bis claim lor damage on tbe 'negligent construction of. tbe Sanitary and storm, sewers and obstructing tbe course of tbe stream.

To tbis pleading an answer was filed, and in due time a reply. Later, on April 10. 1920; a second amended petiticto was filed, wbicn is tbe petition on which, tbe judgment of the trial court in tbis action is based.

This second amended petition pleads three separate causes of action. Tbe first cause o>f action alleges damage because of the negligent construction of a sanitary sewer with manholes constructed too low, with movable tops, .thereby causing, in time of heavy rains., tbe sanitary sewer to! become flooded with surface water, forcing the sewage out of tbe sewer over the premises of ■the plaintiff. Tbis sewer was constructed pursuant to an easement or right of way granted tbe city by( Grier.

Tbe secctad cause of action alleges tbe filling up! of a ravine or water course by a storm sewer,1 6 feet in diameter, causing; tbe water formerly carried thereby, during heavy rains, to be forced over tbe premises of plaintiff, damaging tbe foundation off bis houses and rendering them undesirable as rental property. Tbis stormi sewer also was constructed under a right of way or easement granted by Grier.

Tbe third cause of action alleges tbe damming1 olf tbe same stream, ravine, or water course a.s alleged in the second cause of action by tbe construction of a fill on 8th street, raising the grade thereof, thereby preventing; the water of tbis ravine from fldwing- off in its usual course.

To this second amended petition tbe defendant filed its motion to require tbe .plaintiff to elect whether he would sue for temporary damages or fo!r .permanent damages, on tbe theory that tbe alternative claim for temporary or 'permanent damages as claimed by tbe plaintiff was inconsistent, and for the further reason that defendant could not properly defend against an alternative action.

This motion was overruled by the cohrt, to which action tbe defendant excepted, and tbis is assigned as error on tbis appeal.

An answer was filed by tbe defendant, admitting the donstruction of the sewers and the 8th street embankment, but denying’ that the sewers or embankment were negligently construed. Defendant further alleged that plaintiff’s property was situated in lotv lands over which surface waters ■naturally flowed and that plaintiff failed to protect and guard bis lands and that the property bad always been subject to similar floods. Defendant furcher .plleaded that tbe improvements were made in the exercise of governmental and discretionary legislative powers properly dctae for the improvement of the municipality, and because of this de.endant is not liable. As a further defense defendant pleaded tbe two-year statute of .limitations. Tbe reply was a general denial.

A jury was waived and the cause submitted to tbe court, which heard the evidence and rendered judgment for $T,50® in favor off plaintiff,, later remitting $1,000 on the 'hearing of the motion fdr new trial. Appeal wasi perfected. regularly and in due •time.

Plaintiff in error argues six assignments of error in its brief, which are as! follows;

“1. Tbe trial cdurt erred in overruling the demurrer to plaintiff’s second amended petition, defendant’s objection to' the introduction of any evidence under plaintiff’s second amended petition, and defendant’s demurrer to the evidence off the plaintiff.

“2. The judgment off the trial court is contrary to the evidence.

“3. The judgment of the trial court is contrary to' law.

“4. The judgment is excessive.

“5'. The trial court erred in admitting incompetent evidence on the part of the plaintiff and refusing’ to admit competent evidence on the part off clefendant.

“6. The trial court erred in. overruling ■the motion Gff the defendant to require the plaintiff to elect upon which theory he was seeking to recover.”

The argument under the first assignment of errotr is largely confined to the propositions of the alleged bar of the statute of limitations. Plaintiff in error relies on the, provisions of section 185, Comp. Stat. 1921, the pertinent part off which is as follows:

“Civil actions other than for the recovery lof real property can only be brought within the following periods after the cause off action shall have accrued, and not after-wards :
“Third: Within two years: An action for trespass upon, real property; an action fot taking, detaining or injuring personal property, including actions for the specific recovery of personal property, an action for injury to the rights of another, not arising oln. contract, and not hereinafter enumerated, ’an .action for relief on the ground of irauci — the cause of action in such case shall uot be deemed to have accrued until the discovery of the fraud.”

He points ciut that the original petition was filed May 11, 1917, and the second amended petition, on which the cause was tried, was filed April 10, 1920. He further shows that the allegations of the pe-titicfei show that tihei first flood was in June, 1913, the sanitary sewer was constructed in October, 1912:, the storm sewer in 1912, and the grading of 8th street in March, 1913. He further relies on the fact that the 8th street grading and embankment are not specifically complained of in the original petition.

He next calls attention tol the fact that on May 20, 1913, the plaintiff, Lorenzo Grier, filed a claim with ihe commissioners of the city; of Tulsa for the sum of $5,000 because of negligence and carelessness of the city off Tulsa in building an embankment on the 8th street between Madison and Lansing, the point in question here. This claim was attached to an exhibit to the amended petition and was later introduced in evidence by the .defendant. It specified damage to lots 19 and 20, block 9, Bumutt addition, lolls 1, 7, 91, 10 and 11, Oaklawn addition, a part of the premises herein all-aged to have been damaged. It also claimed damage because -of thei sanitary sewer and storm, sewer.

It is -apparent that -there must be much force to this '¡claim on the .part of the plaintiff in error unless the matters on which it relies can he avoided in some way by other matters in thei second amended petition showing1 a lack of effect in the claim set out.

The plaintiff in his second amended petition sets oat the variotus dates of construction and the various overflows beginning in June, 1913, passing 1914, continuing at frequent -intervals u.p to' the filing of the petition. Apparently in order to meet the objection made as to the bar of 'the statute, t-he plaintiff alleged in the second and third causes -of action that it did not become obvious until June,, 1915, that the construction of -the storm, sewer and embankment would Causa his land to be flooded continuously, -stating that debris caused the water of the first flood, to accumulate. He made no such allegation as to his first cause of action, apparently relying on t-he fact that the following provision was included in his grant of right of way:

“Said main sewer shall be laid and maintained by the said party oif .the second part at its own cost and expense in such a manner as not to- unnecessarily interfere with the use by -the parties of the first part, their heirs and assigns of the premises where land.”

Thus making- it a contract in writing with a five-year limitation applicable thereto.

Is this contention, as to the fact that the injury did mot become obvious, sufficient to eoin-stit-ute an exception that will remove this action from the -bar Gf the statute ?

The plaintiff in error relies on the cases of Parker v. City of Atchison (Kan.) 48 Pac. 631. and City of Ardmore v. Orr, 35 Okla. 305, 129 Pac. 186. These cases, in olnr opinion, do not meet the particular question now under discussion. In Parker v. City of Atchison, the only proposition as to limitation discussed was the straight limitation of two years without any allegations or proofs shelving -an exception taking the matter out of the bar c/f the statute. In City of Ardmore v. Orr, the question o-f limitation was not decided at all. The questions . in controversy were liability for collecting surface waters and failing to provide an outlet therefor; whether such damages were temporary or permanent; and questions of practice.

This court in Pahlka v. C. R. I. & P. Ry. Co., 62 Okla. 223, 161 Pac. 544, which is relied -on by both parties tol this action, holds that -where the actual injury is not the. -obvious or necessary result of the erection of the improvement, the cause otf action arises at the -time of the actual injury and not at the time o-f the erection of the structure. It holds, -where the cause is permanent (not the injury) and the injury is the obviolus or necessary result that the cause of action anises at t-he time of the erection of the improvement.

This case has been followed by -this court in Lundy v. Atchinson, T. & S. F. Ry, Co., 94 Okla. 130, 220 Pac. 857, in which this court -said: .

“This grade or dumping having been built ‘long prior to- December 31, 1917,’ and no resultant injury -to plaintiff’s land or crops having occurred until May, 1918, it seems clear that the injury then suffered was not the natural and o.bvious result of such construction. but -that ¡other and independent causes combined with such construction to produce the conditions resulting in the instant loss. It is not the -character or permanence -of the improvement of which plaintiff complains, but that ‘defendant failed and neglected to provide sufficient outlet for the water that would accumulate by reason of the railroad bed.’ Obviously such defect, when fc/nnd to exist, is remediable, and admittedly under the . allegations of the petition such defect was not demonstrable until the concurrence o'f other causes therewith.”

Under these holdings, whether the injury was the obvious and necessary result of the improvement, or whether it was not obvious or apparent until June, 1915, that the construction olf the storm sewer and the embankment would cause the extraordinary flooding of the property was an issue of fact to be tried by the court sitting as a jury.

The judgment of the court in iavcff of the plaintiff is an adjudication of these matters in accordance with plaintiff’s theory, and it only remains for us to inquire whether or not there is competent testimony reasonably supporting his finding.

Evidence was introduced on behalf of the plaintiff showing- that the first flood was in June, 1913. Pie explains this as not being obvious for the reason that the fouir-foolt inlet whereby the water was carried into the storm sewer was stopped up by lumber, boxes, a wagon bed and trasli, and for the reason he was persuaded by the representatives of the city that the trouble would not again occur. There were noi floods or excessive rains in 1914% but in 1915, in March, May, and June, on separate occasions, -the property was flooded, .the latter being the greatest of all. and defendant in erro'r 'contends that at that time it became obvious that bis property was permanently damaged by the nature of the construction, of the improvements.

Plaintiff in error controverts this by claim for $5,000 filed by the defendant in error against the. city olf Tulsa in July, 1913. It calls attention to the fact that this claims damages to a part of this very property for these selfsame reasons. It also refers to letters in evidence written by the plaintiff prior to June, 1915. demanding that the city reimburse him, for his damages.

The trouble with this contention is that it must be. borne in mind that these specified documents are only evidence, for the consideration of -the court along with the other evidence-. Nowhere is it provided that they are conclusive. They might have been very persuasive on the writer o-f this opinion had he been sitting as a trial judge in this case. It seems they were not sufficient for the trial court. 1-Ie preferred to accept the explanation of the plaintiff that he thought from investigation the flo'od was caused by the debris stopping up the intake -of the storm sewer and that he was persuaded by the city’s representative that the damage would not again occur.

Where a law case is tried to the court without the intervention o!f a jury, such jury having been waived, and there is competent evidence to support the judgment, this court will not reverse it on appeal. Hockaday v. Jones, 8 Okla. 156, 56 Pac. 1054; Saxon v. White. 21 Okla. 194, 95 Pac. 783: Deming Inv. Co. v. Love, 31 Okla. 146, 120 Pac. 635; Roberts v. Mosier, 35 Okla. 691, 132 Pac. 679; City of Chickasha v. Looney. 36 Okla. 155, 128 Pac. 136; Meagher v. Harjo, 72 Okla. 2061, 179 Pac. 757: Shadwell v. Brown, 88 Okla. 44, 211 Pac. 410; Dustin Grocery & Feed Co. v. Lucas. 91 Okla. 11, 215 Pac. 417; Foreman v. Neadles et al., 78 Okla. 106, 188 Pac. 1087; Conner v. Warmer, 52 Okla. 630, 152 Pac. 1116; Bohart v. Matthews, 29 Okla. 315, 116 Pac. 944; McCann v. McCann, 24 Okla. 264, 103 Pac. 694; Lockett v. U. S. Fidelity & Guaranty Co., 89 Okla. 143, 214 Pac. 6861; Bank of Big Cabin v. Lyons, 91 Okla. 1, 215 Pac. 427.

Plaintiff in errok also contends under this assignment that a city is not! liable in fixing its first grade, -and cites in support thereof Adams v. Oklahoma City, 20 Okla. 519. 95 Pac. 975, and Mangum v. Todd, 42 Okla. 345, 141 Pac. 266.

While it is true -that the ordinary rule is -that a city may ndt be 'liable if the improvement is properly constructed, tha-t does mot apply in this case. It is not a proper construction to build a high embankment and stop the natural flow, of water through a1 well-defined ecturse and provide no outlet -therefor.

In City of Globe v. Shute, 196 Pac. 1024, 22 Ariz. 280, the cdurt said:

“If the allegation® of the complaint are -true,, the ci-ty diverted the water flowing •in the McCormick wash 'and -conveyed it by means of -a drain in the neighborhood df the plaintiffs’ preimises. The drain was too small .t-o carry the water, rubbish, etev, which came down the wash in the time of ■al freshet, and as a consequence the drain became clogged, and the wa-telr overflowed ■and floclded the premises of the plaintiffs and damaged their goods. Clearly the pity was guilty of a positive ’act of wrongdoing, ■atad cannot be heard to defend on the ground that in building the drain the city was_ in the performance of a public duty, exercising quasi judicial dr discretionary power as to the capacity, size, and dimensions o-f the drain, and is therefore not liable. It is true the city had the right to build the drain, but it had no right to commit what w'as practicality a trespass upon the plaintiffs’ premises. A municipality has no greater right than an individual to divert the waters of a natural stream by means elf an insufficiently constructed drain or other artificial channel, and thereby damage .the property of an ’abutting- owner. This is ■clearly the law.”

XU case h-ais been rallied to our attention where tbe city has stopped the co-urse of water running- through well-definisjd banks and not been held liable for damages. In surface waters only, a different rule may exist, bat from -the proof1 in this case the waters complained of here cannot be helcl to be surface .waters alone. . .

Attention is called to the i-act tha-t the Eighth streeit) embankment is note specifically mentioned until the filing of tbe second amended petition. While it is not specified in tbe preceding petitions, the matters resultant therefrom are set out and the petition relied on -is merely more specific, definite, and certain than the preceding petitions, and declares- on no) new cause of action..

Plaintiff in error next contends that the judgment of the trial court is contrary to the evidence. It is its theory that there was no proof that the eonstructicta. of these improvements caused any greater amount of water to be cast on the land -than was thrown thereon by floods previous -tel the construction of those improvements. We think this not well taken. There is a. superabundance of proof as to vast ametemts of water flooding this property .While it is true that plaintiff in error introduced some proof as to previous floiods, yet it must be remembered -that the word “flood” is a relative tenm and miay refer to mere surface water causing a temporary inconvenience, 'and may also refer to-such quantities of water as catused the damage in the present case. We think it apparent to any open-minded person that the improvements in. question did cause a vast difference in the extent of the inundation. It would he a strange thing1 if filling up a waterway having -banks 8 feet high and a width at the bottom of 20 feet with a sewer 6 feet in diameter together with dirt, said sewer finally crossing -the ditch at right angles, and finally by building an embankment for a street without an outlet woijld not cause the water formerly carried toy this ditch to spread out and back up over the plain-tiff’s property.

The plaintiff in error next contends that the judgment of the trial ccteirt is contrary to law. Plere the question argued is that thq court erred in holding that the damages, assuming that they were proved, were •permanent. Council cites City of Ardmore v. Orr, 35 Okla. 305, 129 Pac. 867, in support of his theory that the damages, if any, wter|e temporary. In the Aifimcjre Case, prior to 1907, the surface waters on Oaddo street were carried off through two stone sewers running under a railway track on the east side- of the street. These sewers had always carried ail the water satisfactorily. During that year the city paved Caddo- street, elo'sed one of the stone sewers and carried all the water to- the other sewer, at the same time reducing its size. Other cross streets were paved and their waters thrown into Oaddo street to be carried off through, the same opening. Plaintiff was damaged by tbe failure of this one sewer -toi carry off tbe entire quantity and sued and recovered damages. The court’s instruction -authorized the plaintiff to recover all loss of rent®, sustained, loss of rents in future, and all other damages plaintiff had sustained or might sustain in the future. The court thereby hel-d the damage permanent. This court in reversing the c-ase said :

“If said sewers are enlarged or additional sewers built to carry off these wa'-ers, then no further injury will result to plaintiff; and it cannot he presumed tha-t the city, upon its having -been determined that tbe collection of the waters at the -point near plaintiff’s property and -the negligent construction of said - sewers to carry it off is unlawful, will not remedy the same so as to prevent further injury. To permit plaintiff to recover for iuture loss, which will not occur if the defects in -the construction of said sewer are corrected, would be unjust to the city.”

In that case it will be seen that it was only necessary for the defendant to provide an additional outlet under the railroad. and the damage could not be held permanent.

The ease- of City of Mangum v. Sun Set Field, 73 Okla. 11, 174 Pac. 501, holds -that whether or not an injury temporary or permanent is determined by whether or not it is abatable. It defines the n-ona-batable structure as “a structure which if erected •by one that has the power of eminent domain, eohld be made legal 'by condemning the property that it injures or the right that it infringes.”

This, of course, applies to the condition in this case. Further, in the present case the damage is caused by the stopping up of a stream by a part 'of a permanent sewer system, by a permanent sanitary sewer and by a high embankment supporting a paved street. It can readily be seen that it would cost the city- of Tulsa far more to remedy the evil in this case than it would to pay the damage. In fact, it could sn all probability not be remedied at all with due regard for the public welfare.

Note. — See under (1) 25 Cyc. pp. 1136, 1140; (2) 4 O. X §2853.

Plaintiff in error next complains that the judgment is excessive. We have examined the testimony, and find reasonable testimony sufficient to sustain the judgment. In addition t ■ hearing the witnesses, the trial judge, by agreement of the parties, viewed the premises alleged to have been damaged. He gave the amount of damages a second consideration when he ordered $1,000 remitted or a new trial given. Under all these circumstances, we do n t feel justified in disturbing the amount.

The plaintiff in error also complains of the admission of incompetent evidence and the exclusion of c mpetent evidence. This evidence is not set out as required by rule 26. Further, this court has repeatedly held that this court will not reverse a cause because of the admission or exclusion cf evidence, where the cause is tried to the the court, unless it affirmatively appears that such action of the court affected the result. Tobin v. O’Brister. 16 Okla. 500, 95 Pac. 1121; Geenert v. Griffin, 28 Okla. 733, 116 Pac. 439; Stone v. Spencer, 79 Okla. 85, 191 Pac. 197; Ins. Co. of North America v. Cochran, 59 Okla. 200. 159 Pac. 247; Browning v. Atkins, 10 Okla. 536, 62 Pac. 281; Hoodenpyl v. Champion, 101 Okla. 239, 225 Pac. 160.

Complaint is next made because the court erred in overruling the motion of the defendant that the plaintiff be required to elect upon which theory he would recover. It cited in support of this contention Irvine v. City of Oelwein. 170 Iowa, 653. 150 N. W. 674. The question therein decided was not the identical question here, but it may in a sense be regarded as an authority in support of the contention of plaintiff. We think it w uld not. have been error, had the court required the plaintiff to elect. We have, however, a volaminoius record before us of more than 800 pages. We feel that this case was fully presented by both sides <n both theories. Counsel for plaintiff in error have not pointed out that it is not apparent how the city of Tulsa was damaged by the overruling of this moti n. No injury be'n.g apparent, the cause will not be reversed because of error in overruling the motion.

The judgment of the trial c urt will therefore he affirmed.

MeNEILL. O. X. and JOHNSON, BRAN-SON, and GORDON, J.J., concur.  