
    DAMAGES TO PROPERTY LYING BELOW GRADE.
    [Circuit Court of Hamilton County.]
    Matilda Sharp v. City of Cincinnati.
    Decided, April 11, 1904.
    
      Incomplete Record — Necessary Findings Will Be Presumed — Only Affirmative Errors in Charge Can Be Considered — Damages from Surface Water to Property Below Street Grade — Property Owner Can Not Complain of Burden Incident to Low Location, When— Doctrine of Civil and of the Common Law — Negligence of a Vis Major as a Proximate Cause.
    
    1. Where a record does not contain all the evidence, a reviewing court must presume every finding of fact necessary to support the verdict and judgment, and where a portion of the charge of the court is omitted only affirmative errors can be considered.
    2. There can be no recovery from a municipality for property damaged by surface water, simply because it lies lower than the grade of the street.
    3 It is immaterial in such a case whether the doctrine of the civil or of the common law is applied, where a charge puts the question squarely to the jury whether the damages were due solely to the low situation of the property.
    4. Where one has negligently failed to perform a duty which he had contracted to do, he will not be allowed to take refuge in an inquiry whether his own negligence or a vis major was the proximate cause of the resulting injury; but where the injury was proximately caused by the act of God, the law does not concern itself with duties the observance or breach of which had nothing to do with the damage.
    Jelke, J.; Giffen, J., and Swing, J., concur.
   As the record does not purport to contain all the evidence we must presume every finding of fact necessary to support the verdict and judgment. Neither does the record contain the whole charge, so we can not consider any errors of omission complained of, but must confine ourselves to affirmative errors, if any, committed in the general charge or in the giving or refusing special charges asked for.

The two errors relied on are presented by special charges given at the request of defendant and excepted to by plaintiff, and it is complained that these errors are further carried into the general charge.

The trial court gave the following special charge:

“If you find that the property of the plaintiff was located below the grade of East Third street, and that the same would not have been damaged had it been on the level with Third street, then I charge you, gentlemen of the jury, that the plaintiff can not recover. ’ ’

We find no error in this charge.

Of course if the issue is complicated with other elements, such as negligence on the part of the city in constructing the street, and street drainage, or the city is charged with collecting the surface water from a large area and by building the street diverting it upon plaintiff’s land, other and different principles of law apply.

But, taking the case simply, if the plaintiff’s property is damaged because it lies low, that is not the city’s fault; plaintiff’s property must bear the burden of its unfortunate situation.

When the city built and improved East Third street, if it changed and raised the grade, thereby making plaintiff’s property low, plaintiff was entitled to compensation, and either recovered compensation from the city or waived the same.

When that matter was closed, either by payment or waiver and the street was built, the reciprocal relations again became as though the topography was natural, and plaintiff thereafter could not complain of the burdens incident to the low location of her property. Elliott on Roads and Streets, Section 470, says:

“A city is not however liable merely because water collects on land in consequence of its being lower than the grade of a street which the city had a right to establish, ’ ’ citing eases.

Tiedeman on Municipal Corporations, Section 354a:

“"Where the authority is vested in the municipal corporation, by charter or statute, to improve streets and establish street grades, and, in the exercise of that power, changes are made in the surface of the city’s highways by which surface water is caused to collect on, or flow over, the adjacent land of private owners, there is no implied liability on the part of the municipal corporation for such indirect and consequential injuries, provided the city does not exceed its lawful power.
“So, also, it has been held that, ordinarily, there is no obligation on the city to provide drainage for the surface water upon its unimproved or unguarded streets; and when a city has begun the process of grading, it is under no implied liability to keep open former existing drains, or to construct new drains in their place, in order to prevent the surface water from overflowing land which may be situated below the level of the highway. Upon this point the decisions are far from harmonious, many eases holding that the city, when practicable, should provide drains and culverts. Many eases go further, and deny any implied liability, where, in making local improvements, which are legally authorized, surface water is made or permitted to flow from the street directly upon the adjoining property,” citing cases.

Dillon on Municipal Corporations, Section 1051, says:

“But since surface water is a common enemy, which the lot owner may fight by raising his lot to grade, or in any other proper manner, and since the municipality has the undoubted right to bring its streets to grade, and has as much power to fight surface water in its streets as the adjoining private owner, it is not ordinarily, if ever, impliedly liable for simply failing to provide culverts or gutters adequate to keep surface water off the adjoining lots, below grade, particularly if the injury is one which would not have occurred had the lots been filled so as to be on a level with the street. The cases are not in harmony on the point last presented, but the above is believed by the author to be the correct doctrine.”

Counsel for plaintiff object to this statement from Dillon because it is based on the common law and say that the rules of the civil law as to the surface water obtain in Ohio, citing Crawford v. Rambo, 44 O. S., 283:

“The difference arises as to surface water. In some of the states the rule of the civil, and in others that of the common law, prevails. The former requires each tenement to submit to the conditions imposed on it by nature, so that the owner of a lower tract can not divert the water that flows to and upon his own from a higher one to the injury of the latter. This rule was recognized by this court in Butler v. Peck, 16 Ohio St., 334, and was adopted as the rule of its decision in Tootle v. Clifton, 22 Ohio St., 247.
“The civil law acts upon the maxim that water is descendible by nature, and that its usual flow should not be interfered with, so that its burden, if it be one, should be borne by the land where it naturally flows, rather than by land where it can only be made to flow by artificial means. The common law does not recognize this principle as to surface water, but permits any one to protect his own premises from it as he may choose to do, without becoming liable to others injured thereby; or, more properly, it does not regard it as an injury to do so, whatever inconvenience or loss may result to others therefrom. It is not necessary, as we have said, to discuss the merits of either system in this case, as the injury complained of does not arise from an interference with the flow of surface water.”

However, the Supreme Court said in Springfield v. Spence, 39 O. S., 671:

“The owner of private lots can raise the same to grade if he so desires, and can thus keep out all surface water; but the municipal government has neither the interest nor the right thus to improve and protect private property. If the city could thus improve private lots, its power might become oppressive; and if the private person could thus compel the city to care for his private interests, its weakness might become ruinous. The law protects each in the proper exercise of rights, and excuses many omissions.”

The charge puts the issue fairly before the jury: Was the damage caused solely by the low situation of the property ? And the best test of this is by asking, Would the damage have occurred if the property had been on the level with Third street?

On this issue it makes no difference whether the doctrine of the civil or the common law is applied.

The next error charged is against the following special charge:

“If you find from the evidence that the damage to the property of plaintiff was caused by an extraordinary and unprecedented rainfall, then I charge you, gentlemen of the jury, that the city of Cincinnati, in the absence of negligence, is not liable, and that the plaintiff can not recover any damages. ’ ’

It is not said that this proposition is erroneous, but it is contended that the converse of the proposition should have been given and it is complained that the general charge fails in this regard, and that it should have been charged that if the city was guilty of negligence it would be liable and in that case the act of God would be no defense irrespective of any question of proximate cause.

Counsel for plaintiff in error urge that—

“The intervention of the act of God will not be a defense when the negligence of the defendant combined therewith to cause the damage.”

The cases cited are obscuring and misleading because they are common carrier cases or cases based on contract.

There is a fundamental difference in setting up the act of God as a defense in cases involving negligence of a duty imposed by law and- cases involving negligence of a duty based on contract.

Charles E. Tenney and Norwood J. Utter, for plaintiff in error.

Frank H. Kunkel, contra.

In the former the question of proximate cause is an essential element of liability or defense and in the latter it makes no difference.

Where on contracts to do a thing, without reservation, he should be held to its performance no matter what intervenes. But the law in some cases as in that of common carriers, has been more gracious and has said that where one has been prevented from doing what he contracted to do by a vis major, he may set this up as a defense, relieving him from liability. But this grace will not be extended to one who has been negligent. Where one has negligently failed to perform a duty which he has contracted to do, he will not be allowed to take refuge in an inquiry whether his own negligence or a vis major has been the proximate cause of a resultant injury.

As to a duty imposed by law it is quite otherwise. Duties imposed by law are duties implied from the facts, circumstances and relation of the parties.

Now, where damage has proximately been caused by an act of God, the law does not concern itself in implying duties the observance or breach of which had nothing to do with the damage. The law makes no immaterial implications. See Am. & Eng. Encyl. Law, 2d Ed., Vol. 1, p. 592.

The charge given gave to plaintiff the full benefit of all she was entitled to under this aspect of the law, and the proposition asked for by counsel for plaintiff would have been misleading and erroneous.

On account of the condition of the record the judgment in this case could only be reversed for such affirmative prejudicial error appearing as could not be cured by subsequent addition, correction or explanation, as we are bound to presume that any necessary curing addition, correction or explanation was there, and as we find no such error, the judgment will be affirmed.  