
    City of Elkhart v. Slabaugh et al.
    [No. 29,889.
    Filed January 7, 1960.]
    
      
      John R. Harman, of Elkhart, and Carl L. Chattin, of counsel, of Goshen, for appellant.
    
      Philip E. Byron, Jr., of Elkhart, for appellees.
   Per Curiam.

This is an action for damages allegedly sustained by appellees by reason of a break in the main line of one of the City’s sewers. The break had resulted in a stoppage of drainage from appellees’ property. Appellees voluntarily repaired the sewer which was 18 feet under the City street and in this action they demand judgment in “damages” in the sum of $757.35, which is the cost of the repair. No claim is made for damages to appellees’ property by flooding. In support of their action appellees assert that the sewer was negligently constructed.

It is contended as g-round for appeal that the judgment is not sustained by sufficient evidence and is contrary to law.

The theory of appellees’ complaint is anomalous. For even though there may be some evidence to sustain the contention that there may have been negligence in the construction some 45 years ago, still we find no basis in law or fact in the record to sustain the judgment since the complaint only asks for money spent in repairing the sewer, which was never authorized by the City.

In fact there is no evidence that the City either knew of the faulty condition of its property or that any facts existed from which the City should have known of the faulty condition which placed a duty upon it to make the repair. Therefore, the pleadings and proof do not sustain an action in negligence.

We conclude therefore that the judgment is not sustained by sufficient evidence and is contrary to law.

This cause is transferred to the Supreme Court and the judgment is therefore reversed and new trial ordered.

Note. — Reported in 163 N. E. 2d 583. 
      
       Transferred under §4-215, Burns’ 1946 Repl. See City of Elkhart v. Slabaugh (1959), 157 N. E. 2d 842.
     