
    The City of Hamilton v. Ashbrook.
    
      Municipal corporation liability — Gity not liable for damages from overflow in natural water course, when — Statutes do not impose duty upon city to protect low lands, when — Extent of obligation of municipality to construct levees.
    
    1. A municipal corporation is not liable for damages caused by such increased flow in a natural water course as results from the improvement of lots and streets within the territory whose waters naturally drain into such water course. (Springfield v. Spence, 39 Ohio St., 655, followed and ap- ' proved.)
    2. Although the statutes confer upon municipalities situated upon natural water courses authority to levy taxes to acquire sites and construct such levees as public considerations may require, they do not impose the duty of exercising that authority for the protection of low lands from overflow by natural water courses, nor to indemnify the owners of such lands on account of injuries resulting from such overflow.
    3. When a municipality, acting upon a license given to it by the owners of lands along a natural water course which flows by or through it, constructs levees for the purpose of confining its waters, it does not thereby undertake that the levees are sufficient to protect such lands from overflow, nor does it engage to maintain them.
    (Decided April 24, 1900.)
    Error to tbe Circuit Court of Butler county.
    Mrs. Ashbrook brought suit in the court of common pleas against the city of Hamilton to recover damages which resulted from the overflowing of her ■lot situated within said city in May, 1893, whereby ■her vegetables, hot beds and a rope walk situated on said lot were injured. The substance of her amended petition is that a drain or sewer had been constructed by the city and used by it as a part of its sewer system, the sewer being constructed by the erection of dykes or levees on the surface of the ground about twenty feet apart thereby creating a channel or waterway across the low grounds of the. plaintiff and others for the purpose of conveying the surface water to the Great Miami river about one-third of a mile distant from her premises. She alleged that surface water from a large portion of the city was collected by its drainage system and thrown into the channel so constructed, and that the banks of said channel were negligently and insufficiently constructed and maintained so that they were insufficient to resist the weight of water which might be expected to be, and which upon this occasion was, thrown against them, and that from this the overflow of her ground and the consequent injury occurred. She further alleged that the city had constructed bridges for its streets over its said waterway and that said bridges were so low as to interfere with the flow of water in said channel.
    In its answer the city admitted that it is a municipal corporation of the grade and class alleged in the amended petition, and that at the date alleged and for several days prior thereto there were heavy rains in and about the city. It also admitted the, existence of said waterway which was known as Crawford’s Run flowing past the premises of the plaintiff, and alleged that upon the day of the injury to the plaintiff’s premises the water in the river had in consequence of said rains reached an unusual stage, and impeded the flow of the water in the run by the backing up of the waters of the river by which the breaking of the levee was occasioned. It denied all the allegations of the petition which were not expressly admitted.
    The reply was a general denial of the allegations of the answer.
    There was no important conflict in the evidence introduced upon the trial. The drain referred to is a. natural water course known as Crawford’s Run as' the original petition had. alleged it to be. It flowed by the low lands of the plaintiff and others lying near the Miami river in a winding and somewhat ill-defined course discharging its waters into the river about one-third of a mile away. The development of the city had been- attended by the establishment of grades, the erection of houses and other buildings and in the improvement of streets and sidewalks resulting in a somewhat more rapid flow of water from the area which naturally drained into Crawford’s Run; but there was no evidence tending to show that the city had ever added to the area of drainage. In July, 1868, the proprietors of the lots and lands in the vicinity executed to the city the following instrument :
    Whereas, it is proposed by the city council of the city of Hamilton to straighten, widen and deepen the sewer or drain leading from the Miami canal westwardlv to the Miami river in the south part of the city of Hamilton, Ohio, and along what is known as Crawford’s Run so that the direction of said sewer or drain shall be as follows, to-wit:
    (Courses and distances omitted.)
    And whereas in thus following said direction for said sewer or drain it will be necessary to enter upon and occupy for that purpose certain lots and land owned by the grantors herein as well as to make the necessary excavations thereon for the construction of said sewer or drain. Therefore, in order to afford to the city of Hamilton all proper facilities for the straightening, widening and deepening of said sewer or drain between the points named, we, the undersigned owners of real estate along the line of said contemplated improvement, do hereby give, grant and convey to said city of Hamilton the right of way on the real estate owned by us respectively along the line of said sewer or drain to the end that the same may be straightened so as to run in the direction above described. We also grant to said city of Hamilton the right to make all proper excavations and embankments in order to construct said improvement, upon our respective tracts of land along the line of said sewer or drain as above described, said excavations to be in all cases upon the line of said drain or sewer, hereby releasing all claim of damages or compensation on account thereof.
    In witness whereof we have hereunto set our hand and seal this 27th day of July, 1868.
    This instrument was executed by Mrs. Ashbrook’s grantor. Pursuant thereto the city then erected the dykes or levees whose insufficiency is alleged, and did all that it ever did to affect, in any way, the flowage of the water in the stream with the exception of unimportant and infrequent repairs of the dykes or levees which it then constructed. When the levee in front of Mrs. Ashbrook’s lot gave way heavy rains had fallen, large quantities of water had collected in Crawford’s Run and a very high stage had been reached by the water in the river, from which it resulted that the levee became soaked and weakened so that it gave way.
    It is not entirely clear whether at the precise time when the break occurred the water in the run was still flowing toward the river or the waters of the river had set the current in the opposite direction. It is, however, undisputed that within a very brief time thereafter the water was flowing rapidly from the river, that the surface of the water in the river was more than seven feet higher than the portion of Mrs. Ashbrook’s lot nearest the levee, and that when the water stood upon her lot at its greatest depth its level was substantially that of the water in the river.
    The city solicitor requested the court to give the following instructions which were refused:
    I. It having been shown by record evidence that at the time of the improvement of Crawford’s Run by straightening, deepening and widening the same that plaintiff’s grantor, then the owner of the property described in the petition, in writing, agreed to said improvement and released the city from all claims for damages by reason thereof, and there having been no evidence offered to contradict said agreement, I charge you that plaintiff can not now complain by reason of the defendant’s having made said improvement whether the same is an artificial or natural water-way.
    II. Before you can find for the plaintiff under the evidence adduced you must find that, at or before the time of the improvement of Crawford’s Run by deepening, widening and straightening the same, and erecting banks, or at some time since said time and prior to the injury complained of, said city agreed with plaintiff or her grantor and bound itself to • maintain said banks; and unless you find that there was such an agreement your verdict must be for defendant.
    The jury were instructed generally that if the city used this Run as a part of its drainage system it was bound to use ordinary care in constructing and maintaining its banks. The portion of the charge which regarded most closely the evidence in the case was the following:
    “If this drain was so located and constructed that in times of high water in the river, the water backed up the channel of the drain and thereby increased the volume of water therein, and the pressure against its banks, it was the duty of the city authorities, if the city maintained and used the drain, to take all reasonable precautions to render the banks of sufficient strength to resist such pressure, and retain such increased volume of water.”
    The jury returned a verdict in favor of Mrs. Ash-brook for the injuries shown to have been done to her property. The city’s motion for a new trial was overruled and a judgment was entered upon the verdict. In the circuit court the judgment of the common pleas court was affirmed.
    
      O. R. J1 aril:off, City Solicitor, and Ed. E. Jones, for plaintiff in error. •
    
      Morey, Andrews & Morey, for defendant in error.
   Shauck, C. J.

We do not find in the briefs of counsel for Mrs. Ashbrook any claim that the system of drainage adopted by the city enlarged the area which drained into this natural water course. That view of its liability has not appeared in the case since the filing of the amended petition. Nor does it appear to be the view of counsel that the city is liable for the increased flowage of water resulting from the improvement of property within the area of natural drainage. That a municipality is not liable on that account is settled in Springfield v. Spence, 39 Ohio St., 665. Nor could it be maintained upon the evidence in this case that the levees were insufficient to confine the water which actually came from the area of natural drainage. The liability of the city is to be determined in view of the fact, which no evidence in the case obscures, that if at the time of this occurrence the site of Hamilton had been a wilderness, the land now owned by Mrs. Ashbrook would have been covered by water to the same depth. There being no evidence to show that the city caused the water to flow upon her land, we have to inquire whether it is liable for permitting it to flow there.

We do not infer from the charge that such a liability was supposed to result from the erection of levees in 1868 upon the execution of the instrument of that date. That instrument was but a license, and what the city did in the construction of the levees was its execution. No consideration passed from the signers of the instrument, nor did it contain terms binding the city to the construction of levees of sufficient strength to exclude back-water from the river, nor to maintain such levees as it might construct. That it was not intended to impose an obligation upon the city is to be inferred from the fact that it did not execute it. What the city then did indicated the extent to which those then in charge of its affairs thought that public money might properly be used for the protection of its streets and of the neighboring lands from inundation. If they had authority to create a future liability in that regard, and thus to forestall the judgment of their successors upon that question, it is quite clear that they did not attempt to exercise it. The liability of the city was not greater after than before the execution of the license of 1868. The trial judge may have been justified in refusing to instruct that the city was not liable except upon an agreement, since there was no evidence of any agreement affecting the subject of the action.

When in the portion of the charge quoted in the statement of the case, and in other portions of it, the trial judge called Crawford’s Run “a drain” he invited himself to the commission of error. And in that, and other portions of the charge, the jury was authorized to draw an inference unfavorable to the city if it used the waterway. It did not, according to any evidence in the case, use it otherwise than as a means of escape for the surface water which flowed into it from the natural inclination of the ground. Such use by cities of streams which flow through or by them is universal and inevitable. It is inevitable because of the persistent tendency of water to seek a lower level. We look vainly for the foundation of such a liability as is contemplated in the instructions given. A city may be held in damages for failure to perform its contracts, for wrongs which it perpetrates and for omissions of duties imposed upon it by law. Here was neither contract nor wrong. What imposed duty was omitted? None is called to our attention. To justify this recovery, the omission would necessarily be of a municipal duty imposed upon the city to exercise the power of taxation for the private purpose of giving low-lying lands which are subject to overflow a value equal to that of those more favorably situated. No statute imposes such a duty. The case does not require us to say that no such duty could be imposed. Levees are public works. The authority to acquire sites for them is conferred by Section 2232 of the Revised Statutes; and that to levy taxes for their construction by Section 2683. The terms of the statutes impose no duty. They are mere grants of authority which may be exercised or not according to the discretion of the proper municipal authorities in view of the public considerations by which its exercise might be affected. Since it was not the duty of the city to make any provision to protect these lands from overflow by the waters of the river it is plain that it is not liable on account of the inadequacy of the provisions which it saw flt to make. The instruction which would most certainly have led to the right verdict does not appear to have been requested. The jury should have been directed to return a verdict in favor of the city.

Judgments of the circuit and common pleas courts reversed.  