
    Andrews v. Village of Georgetown et al.
    (Decided May 20, 1929.)
    
      
      Messrs. Bagby & Bagby, for plaintiff.
    
      Messrs. Young & Barnes, for defendants.
   Mauck, J.

The plaintiff, Thomas J. Andrews, by his petition in the common pleas, alleged that he was the owner of a residence property at the corner of State and Main streets in the village of Georgetown; that the village by ordinance gave consent to the county commissioners and the state highway department to reconstruct State street through the village along the side of plaintiff’s property; that said street was reconstructed by the commissioners and the state highway department, and as a result thereof the flow of surface water was so impeded that water collected in the gutter running parallel to the plaintiff’s house on the north side of State street; that such water had no outlet over the reconstructed street to the sewer on the south side thereof; and that as a result plaintiff’s property was flooded. Plaintiff sought an injunction and incidental damages. Prom a decree in the common pleas an appeal was taken to this court.

There is not much dispute about the facts. It is clear enough that before this improvement was made the plaintiff suffered but little damage from the flow of water in the street adjacent to his property. It is quite dear that since the improvement, and on account thereof, the plaintiff’s property has been inundated, and he has suffered considerable loss and much annoyance. It is further apparent that since the bringing of this action the village by cleaning out an old sewer, and by providing new facilities, has removed much, if not all, of the danger of further inundation, although we expressly refuse to find that the present facilities are adequate, for the lack of testimony on that feature of the case.

It is claimed by the village that, inasmuch as the gravamen of the plaintiff’s case is that the reconstructed road was too high to permit the escape of the flow of the water, no cause of action arises against the village, because the grade was fixed by the state highway department, and the work was done by the state, and the cost paid by the state. By Section 1193-1, General Code (107 Ohio Laws, 123; repealed 112 Ohio Laws, 500), the village was relieved of the cost of an improvement of this character, but the consent of the village was required. While under Section 1184, General Code, the state highway department is given exclusive jurisdiction over the construction and maintenance of this highway, such jurisdiction can be exercised only by the concurrence of the village under Section 1193-1. The general duty of municipal corporations over their streets is fixed by Section 3714, General Code. That section, so far as it provides that the council shall have the supervision and control of streets, is modified by Section 1184 so far as the construction and maintenance of such streets as fall under the jurisdiction of the state highway department are concerned. Section 3714 is not, however, repealed, and operates with all its vigor in every respect, except as provided in Section 1184. Section 3714 expressly provides as to streets that the municipal corporation shall “cause them to be kept open, in repair, and free from nuisance.”

While the duty of maintenance, that is of repair, upon this particular street, devolves upon the state-highway department by virtue of Section 1184, the duty of keeping the street free from nuisance continues to devolve upon the municipal corporation. That corporation in passing an ordinance giving its consent to the improvement of the street by the state highway department might have required that department to have fixed such a grade for the street in question as would enable the water to flow with its former freedom. This it did not do. It can be fairly assumed that, if it had attempted to do so, the state would have insisted upon the village taking care of its own surface water. At all events, the village consented to the improvement, and the law, by virtue of Section 3714, still imposes upon the village the duty of avoiding a nuisance in its streets. The plaintiff has made a case of nuisance, and the village will be enjoined from its further maintenance.

The amount of damages suffered by the plaintiff by reason of the invasions of his property by the surface water is very vague and uncertain. No lasting damage is clearly shown. His cistern was filled with filth, but is capable of being cleaned out. His floors were damaged, but not destroyed. He adduces no testimony giving us any adequate idea of the amount of money that he has expended in the restoration of his property. After the first inundation he presented his bill to the council for $125. He says that that was not enough. The evidence shows that that flooding was not quite as serious as subsequent ones, but it does not appear how much repair he had put upon the property after the first and before tbe second inundation. We do not give much consideration to the testimony tending to show the value of the property before it was subjected to floods and the value since, because the plaintiff advises us that such alterations in the drainage have been made that there will be no recurrence of the trouble, and we must assume that the decree of this court in injunction will be observed, and that there will be no recurrence of the trouble. The rule, therefore, as to ascertaining damages by ascertaining the value before the improvement was made and the value of the property subject to the hazards of flood, and measuring the damages by the difference between these two values, is not applicable to a case of this kind. We assess the plaintiff’s damage at $400.

Decree for plaintiff.

Lemert, J., of the Fifth Appellate District, sitting by designation with Mauok, J., of the Fourth Appellate District, concurs.  