
    August Herring vs. The District of Columbia.
    Law. No. 19,911.
    < Decided November 13, 1882.
    
      i The Chief Jhstic k and Justices Cox and James sitting.
    1. Where in action to recover damages for injuries to property the Statute of Limitations is pleaded, recovery can only be had for such injuries as were incurred during the period not covered by the Statute.
    2. The admission of evidence as to injuries suffered, without regard to the period covered by the Statute,' is error, but will be cured by an instruction afterwards given the jury that the plaintiff cannot recover for such injuries as were inflicted prior to three years before the bringing of suit,provided the evidence given is such that the jury can divide the injuries inflicted within the three years from that which was incurred prior thereto, but it will be otherwise when the evidence is not of such a character.
    3. Damages resulting to private property from the defective construction of a sewer by the District affords no ground of action unless it' is shown that the District was guilty of carelessness either in the selection of the engineer or in the selection of a plan.
    STATEMENT OE THE CASE.
    Motion for a new trial on exceptions.
    This was an action to recover damages of the District for injuries to plaintiff’s property ; the declaration, which was filed April 2, 1880, set forth that plaintiff was the owner of ■certain lots of ground in the city of Washington on part of which was erected plaintiff’s dwelling-house ; that prior to ■the committing of the grievances complained of, the said house was safe, strong and dry in every part, and a comfortable and healthy residence for himself and family; that the said lots were free from stagnant water. That there was a natural stream of running water flowing through the lots and emptying into Tiber Creek. That the defendant caused the grade of the street fronting upon plaintiff’s property to be raised and thereafter constructed a sewer .along said street and above the level .of plaintiff’s lots ; that the defendant attempted to divert the water of the said ¡natural stream from its ancient channel into said sewer, but had so unskilfully and negligently made said sewer of such ■small size at its point of connection with said stream that ever since the year 1873 and up to the time of bringing this suit, the said sewer had failed on many occasions to carry ■off all the water of said stream so that it continued to run down and along the course of its ancient bed. That after the making ■ of the sewer- -the defendant' then filled üp a street, crossing this stream,-in so- negligent and careless a, manner as to choke and stop up the bed thereof so that the water escaping from, the sewer as well-ás other large quantities of .water accumulated from the -rainfall, was unable 'to-find an outlet or way of escape and was consequently forced back upon and over plaintiff’s lots and into his house to the depth of several feet, remaining there for more than two-months, and that since said time water had lain in greater or less quantities upon and adjacent to the plaintiff’s property, forming stagnant and ill-smelling pools- from which noxious vapors have constantly arisen. In consequence of which plaintiff's family had greatly suffered in health, and eventually causing the death of his wife in March, 1879-That owing to the said flooding of his house a portion of it had become uninhabitable and the walls greatly weakened and injured and that his lots of ground had become almost wholly valueless, &c. ■ .
    To the declaration, pleas of not guilty and that the action did not accrue within three years were interposed ; to-which pleas issues were joined- At the trial, plaintiff’, who-was testifying in his own behalf, was asked the following-question :
    
      “ What has been the injury done to your house ? ”
    To which question defendant’s counsel objected unless the answer of the witness was confined to the injury done the property within three years prior to the institution of the-suit. ’ Plaintiff’s counsel objecting to this modification the court overruled defendant’s objection and permitted the witness to answer, whereupon he detailed the nature of the injuries and ended by saying that the loss of the use of his basement was worth five dollars a month and the damage done to the house he would estimate at $1,000 at least ; t-hafe his lots which were used for garden purposes he could not use after they began to be flooded. Plaintiff also gave testimony as to the existence of two springs in the west side-of plaintiff's ground, and that the effect of the raising of the-grade- of the streets was to dam up the water from the springs on that square, and sometimes flood the'square, and that the water seemed to have settled on the ground and formed.a kind of marsh; that there was water then standing about his house about six inches deep; that there was a creek or natural stream about eight or ten feet wide that ran near the plaintiff’s property.
    The testimony being closed, counsel for defendant requested the court to instruct the jury as. follows : •
    “The plaintiff cannot recover for any damages that were caused prior to the second day of April, 1877, [and the measure of damages for injury to his property will be the difference between its value at that time, and its value at the time of the commencement of this suit.] .
    But the court refused to grant the part included in brackets, although allowing that portion of the prayer which referred to the statute of limitations.
    The following prayers of the defendant were also refused :
    “ The jury cannot find a verdict, for the plaintiff for damages resulting to him from any defect in the plan of sewerage adopted by the District, unless they should believe from the evidence in the case that the District had negligently selected incompetent engineers to devise such plan.”
    “Under the pleadings in this cause, the plaintiff cannot recover damages for any injury done his premises on account of the water flowing from the springs mentioned in the testimony given in the trial hereof.”
    The jury then rendered a verdict in favor of plaintiff' for $2,006, which was afterwards reduced by remittitur to $1,200. To the ruling of the court in permitting the questions objected to to be answered, and to its refusal to give the instructions prayed, the defendant reserved his exceptions.
    Birney & Birney for plaintiff:
    1. The plaintiff'’s counsel asked : What has been the injury done to your house? Question objected to, because not confined to the three years before suit. We answer :
    The court charged the jury that plaintiff could not recover damages except for the three years before Suit. Defendant was therefore not injured by the answer to the question.
    The question in its form covered the injury to the time of asking. It was the defendant’s right, under its plea of the Statute of Limitations, to cross-examine with a view to excluding all injuries barred by the Statute.
    2. Defendant asked the court to charge that the measure of damages for injury to plaintiff.’s property would be the difference between its value at the time of the injury and its value at the date of the suit.
    Ve answer, if the defendant had added the words : “ Caused by the wrongful acts of defendant,” the charge asked for would have been less objectionable ; but it would still have required the substitution of the idea of diminution for that of difference. The latter may be an increase. Suppose that extraneous causes — neighborhood improvements or the like — had given a large additional value to the property, could plaintiff recover that ? Suppose those causes had restored the property to its original value, would defendant be exempt from liability for damage actually caused by it ? The charge as asked for was imperfect and inaccurate.
    3. The fourth exception assumes that plaintiff claims damages for some defect “ in the plan of sewerage adopted by the District.”
    The assumption is unwarranted. It is true that if defendant had not pleaded the Statute of Limitations, plaintiff' would have offered evidence under the declaration of the insufficient size of the sewer mouth, and of great damage to plaintiff therefrom in 1873-4-5-6. No such evidence was offered.
    All the evidence was under the chief averments in the second and third paragraphs of the declaration; It related directly to the damming up of the natural stream and consequent flooding of plaintiff'’s house and lots ; and incidentally to the three sources of the water which should have ■found its outlet by the natural stream.
    
      • This evidence had all been given without objection made by defendant’s counsel.
    "While plaintiff’s counsel kept carefully to proving the averments in the declaration, and showing what water could not run off by the natural outlet, defendant’s counsel were desirous of giving to the case the character of an attack on the plan of sewerage.
    The instruction was irrelevant. No testimony was offered by defendant to justify its damming up the stream and backing up the water so as to flood plaintiff’s lots. • If defendant proved that it had submitted to a competent engineer this question of damming up that stream, it might have made the point that an engineer’s advice justified it in wilfully destroying plaintiff’s property. One court (see Van Pelt vs. Davenport, 42 Iowa, 308), has held that if a city has committed to a competent engineer the decision as to the size of a culvert intended to take off surface waters, it is not liable for his mistakes ; but no court will probably ever go so far as to hold that a municipality ■ may. relieve itself from responsibility for damming up a natural stream and flooding private property by showing it had the counsel of an engineer to commit the trespass. 3 Kent Com., 439, 440; 2 Washb. R. P., 64, pl. 40; Rose vs. St. Charles, 49 Mo., 509; 55 Mo., 119; 66 N. Y., 62, 88; 65 N. Y., 341; Stetson vs. Faxon, 19 Pick., 147, 158, 510; Indianapolis vs. Lawzer, 38 Ind., 348; Perry vs. Worcester, 6 Gray, 544; Gardner vs. Newburgh, 2 Johns. Ch., 162; Kellogg vs. Thompson, 66 N. Y., 88; 2 Dillon on Mun. Corp., 1038; Pixley vs. Clark, 35 N. Y., 520.
    “ The backing of water so as to overflow the lands of an individual, * * * if done under statutes authorizing it for the public beuefit, is such a taking as by the constitutional provision demands compensation.” Pumpelly vs. Green Boy Co., 13 Wallace, 166; Wood on Nuisances, 121, 123, 131, 133, 831; 30 Vt., 610; 38 Vt., 350.
    5. Defendant claims that, under the pleadings, no damages should be given for injuries by water flowing from the springs on square 616. Plaintiff avers the existence of “ a natural .stream of running water which flowed through'plaintiff’s said lot ” on said square, and that defendant filled up the channel so that “ all place of waste and escape for the water ,of said natural stream” * * * a was cut off’ and stopped.”
    It was not necessary for plaintiff, to aver' that a natural stream is made up of spring tributaries, as well as other waters, or to designate the precise locality of each spring. It was necessary for him to prove the existence of the natural stream ; and the best way to do that, was to prove that it was' fed by permanent springs.
    Francis Miller argued the case for the District, but filed no brief.
   Mr. Justice James

delivered the opinion of the court.

The plaintiff alleges that the District of Columbia had constructed a sewer and afterwards had made a dam across a stream of running water, so that in connection with the defective sewer it caused the overflow of the plaintiff’s property. It appeared that this construction had been made some ten years before the suit had been brought and the statute of limitations was pleaded.

At the trial a witness was asked what injury was done to the property. That question was objected to because it covered injuries done during the time excluded by the statute of limitations. This objection was overruled, and the witness answered that the house was injured to the extent of about one thousand dollars, and that he had lost the use and occupation of certain parts of his property, which were worth certain sums per month. The court afterwards instructed the jury that the recovery could only be had for injuries accruing within the last three years. That cured the error in allowing testimony as to injuries before that time, so far as the rents were concerned. The rent falling within the three years could easily be found by calculation. But the error of admitting proof that the house had been injured to the extent of about one thousand dollars, without showing when that injury accrued, and without showing any means of dividing the injury suffered within the last three year’s from the injury suffered before, was not cured by this ineffectual instruction.- On such testimony as that, it was impossible for the jury to find out the amount of injury suffered within the last three years,' and to that extent the admission of the testimony furnished them a false basis; and manifestly misled them. '

There is another reason why this judgment may not stand. The declaration charges that the injuries complained of arose partly from the defective construction of the sewer and partly from the dam which stopped a natural water-course. Therefore the verdict and the judgment were based upon two claims ; one of which, namely, the defective construction of the sewer, is not a ground of action, unless it is shown that the District was guilty of carelessness, either in the selection of the engineer or in the selection of a plan ; and on this latter point no evidence whatever was offered.

The judgment is therefore reversed, and the case remanded for a new trial, with leave to the plaintiff to amend.  