
    No. 83
    CANTON (City) v. JONES
    No. 19460.
    Supreme Court
    On motion to certify.
    Dock. Dec. 7, 1925;
    3 Abs. 762.
    797.' MUNICIPAL CORPORATIONS — Is a municipal corporation liable in damages to a property owner for failing to provide sewers or drainage for surface water, when the city has done nothing but establish a grade; and does a mandatory injunction lie, ordering the city to provide sewers and drainage for surface water?
    Attorneys — Thos. M. Miller, City Solicitor, and J. E. Hinnison, Asst. City Sol., for City; Brancher & Sterling for Jones; all of Canton.
   An ordinance which provided for the establishment of a grade on the street upon which Louis Jones was a property owner was passed by the city council of Canton; and pursuant thereto, grade stakes were placed, but nothing further was done. The property owners at their own expense and upon their own initiative completed the grading, curbing and laying of side walks.

It appears that, prior to the filling in of vacant lots and the grading of the streets, the surface water had drained over property privately owned, but that, subsequent to the grading and curbing, the water drained to the low end of the street, and there accumulated because the city had not provided a sewer to carry away the surface water.

The testimony shows that the low level of an adjoining street made it impossible to lay a sewer to drain the water eastwardly and that a sewer could not be put in to drain the water at the west end of the street without appropriating private property, and that even if the necessary property were appropriated there would be no place to drain the water until a certain county ditch would be deepened.

Jones brought this action originally, and prayed for damages, on the ground that the city had been negligent in'failing to provide for drainage of surface water, and further sought a mandatory injunction in an effect to compel the city to provide the necessary drainage.

The Stark Common Pleas rendered judgment for Jones for $125, and issued a mandatory injunction ordering the city to provide drainage for surface water, and this judgment was affirmed by the Court of Appeals.

The city, in the 'Supreme Court, contends that:

1. This is a matter of governmental policy over which the courts have no jurisdiction and that the remedy is with the legislative branch of the city government.

2. That the law on this question was established in the case of Springfield v. Spence, 39 OS. 665, which states that a city is not liable in damages to a property owner by reason of failure to provide drainage of surface water.

3. That no liability attaches for simply passing an ordinance establishing a grade.

4. That a mandatory injunction does not lie because it would be vain as such an order could not be enforced because no one could be punished for failure to carry out the court’s order.  