#### Augustus S. Winslow et al. *v.*Louis Fuhrman.

1. Where the owners of land construct an artificial aqueduct, as a substitute for a natural water-course passing through their several parcels of land, in the absence of any agreement to the contrary, and as a general rule, there is an implied obligation, as between the several proprietors, that each will make the necessary repairs upon' the section of the structure lying within his premises.

2. But where the nature and uses of the structure are such as to render that method of repairs impracticable or unreasonable, no such implication, arises, and the rule does not apply.

3. The several owners of parcels of land constituting a valley within the city limits, with a view to filling up the valley to a proper grade for city purposes, and, with the consent of the city authorities, constructed a sewer as a substitute for a small stream which meandered through the valley, each owner constructing that portion of the sewer passing through his lands, and the city constructing that part of it underlying the streets. The streets were graded at an elevation of thirty to fifty feet above the sower, and by gradual process the valley was filled up to this grade, burying the sewer to the depth of thirty to fifty feet. The territory was divided into lots, and became a populous part of the city, with valuable buildings all along the line of the sewer. One of the streets runs in the same direction as the sewer, and for part of the distance directly above it. Into this sewer, the city conducted the water from its streets, and the sullage from other sewers of the city, and made some slight repairs upon it; but it has never been repaired by lot-owners. After remaining in this condition for some twenty years, the sewer became dilapidated, the stones of the arch in several places falling in, and thereby obstructing the passage of the water, and causing it to overflow the lots. In an action by one of the lot-owners against the owners of another lot, to recover damage arising from the failure of the latter to repair a breach in that part of the sewer passing through their lot — both parties claiming title under the builders of the *sewer*— Held, that as between the plaintiff and defendants, and irrespective of the question whether the sewer had been dedicated and accepted as a city sewer, the defendants were not hound to make the repairs, and that the action can not be maintained.

Error to the Superior Court of Cincinnati.

This was an action by Euhrman against the plaintiffs in error, to recover damages for neglect of the latter to repair a sewer in the city of Cincinnati. Euhrman alleged in his *640petition that it was the duty of the plaintiffs in error to repair that part of the sewer passing through their premises, and that by neglect of that duty the sewer became gorged, and the premises of Euhrman were overflowed, to his damage. The defendants (plaintiffs in error), among other grounds of defense which need not be here noticed, denied their obligation to repair.

The facts disclosed by the record, and which bear upon this question of obligation to repair, are substantially as follows:

The sewer in question is some half a mile or more in length, passing through the eastern part of the city from north to south, crossing eight different streets, and emptying into the Ohio river. Before its construction, which was commenced as early as 1835, there was a natural stream, called Beer creek, passing through what was then known as “Beer Creek Valley,” the entire length of the sewer.. This stream was crooked, and the sewer selves as a substitute for its channel, carrying off’ its waters in a straighter line, and by a proximately uniform grade. At the time the-erection of the sewer was projected and commenced, Beer Creek valley was from thirty to sixty feet lower than the present surface of the ground, and was wholly unfit as a site for a city. At high floods the Ohio river overflowed the entire valley to nearly the height of the present surface, and nearly to the head of the present sewer. The valley was Included within the city limits, but no streets had been opened through it. As early as 1834, the city authorities fixed the grade of some of the streets which crossed the valley. Seven of these streets cross the culvert transversely, and one of them, Culvert street, runs in the same direction as the culvert, and for part of its length directly over the-culvert. The adjacent lots are filled up to correspond with the grade and filling of the streets, and the depth of the filling at and near the premises of the defendants, where the break or obstruction of the sewer complained of occurred, is-about forty-seven feet. The sewer was projected and built by concert between all the proprietors of the adjacent lots *641and the city authorities, but without any express agreement as to its repair or its uses. It was commenced by the • city authorities, by building, from time to time, those parts of it which underlie the cross-streets. These sections of the sewer were constructed of stone, placed in the form of an arch, and were generally built by the city on petition of the lot-owners, and upon the condition, or with the understanding, ‘ that the adjacent lot-owners would continue the sewer through their lots, making the same of like material, capacity, structure, and grade. In this way, from time to time, and by common consent of the lot-owners and the city authorities, and without objection from any one, the work was continued from about 1834 down to about 1846, when the sewer was completed. It is of approximately uniform grade, and substantially of uniform size, structure, and material, conforming in these respects to the sections built by the city — the “ centers,” or temporary frames used by the 'city for those sections, being in most cases used afterward for construction of the sewer through the lots.’ Although thus projected and built by concert of action, the sewer was not built as a common work, but each proprietor constructed, or bore the expense of constructing, the part of it resting upon his own lot, and the city that part of it which underlies the cross-streets.

The filling in of the earth above the sewer was gradual, and was participated in by the lot-owners, the city authorities, and others. It was completed, substantially, to its present elevation, some fifteen or- more years prior, to the happening of the injury complained of. Ever since the completion of the sewer it has been used as such, for the drainage of that part of the city; and the city has constructed two sewers which debouch into it at its head, and have added to its length at its mouth. The city has also cut holes in it at the intersections of the streets, and conducted into it the wash and sullage from the street gutters. The city has also, on some few occasions, repaired defective places in the sewer; but no lot-owner has ever repaired, or, before the *642happening of the break complained of, been called upon or required to make repairs. The evidence shows that the sewer has become dilapidated. It is defective and liable to collapse in many places; and in view of the increased, and constantly increasing quantity of water thrown into it, by the growth and improvement of the city, it will soon become, if it is not now, too small to subserve the purposes for which it was intended.

The plaintiff and defendants both own lots through which the sewer passes, and both derive title from original proprietors who participated in building the sewer, and filling in the earth upon the lots, the plaintiff’s lot being situate above that of the defendants. The sewer extends for the distance of two hundred feet through the lot of defendants, and its walls in that section have fallen in, or become broken, in two places. Of these defects the defendants had due notice, in time to have repaired them before the happening of the overflow, and these defects were the proximate cause of the overflow. .

To remove the superincumbent earth from any section of the sewer would require a lateral support, for the remaining earth, of “ one and one-half to two feet ” to every foot of the perpendicular depth; which would make the lateral support required at the place in question, from “ seventy-five to ninety feet.” A lateral support of about this extent would be required for most of the streets, in case the earth were removed from the lots. The original lots or parcels ■of land have been subdivided into numerous small lots, and ¡are owned and occupied by a great number of individuals, ¡most of whom purchased without any knowledge that this was claimed to be a private sewer, or of the supposed liability of lot-owners to repair. That part of the city has ■become populous, and valuable buildings have been erected all along the line of the sewer.

The cause was submitted to a jury, and the court, among ■other things, gave them the following instructions:

“ In general, I may say at the outset, that if the defen d,auts were bound to keep the sewer in repair, the plaintiffs *643suffered damage to their property by the alleged overflow, and the overflow was caused by the failure of the defendants to perform their duty in the keeping the sewer in repair, and the plaintiffs did not, by their own negligence, contribute to the injury, the defendants are liable for such damages as have been proved by the evidence; provided the defendants were the owners of the property at the time of the injury.

“ Under what obligation, then, if any, were the defendants to keep the sewer in repair on their premises ?

“ It appears that ■ Deer creek was originally a natural water-course, draining a surface of about a thousand acres. The proprietors of the lands drained by this natural watercourse were entitled to have it continue to flow, unobstructed by artificial means, to the river, and whoever should obstruct it, to the injury of any such proprietors, would be liable for the injury, whether the person who caused such obstruction was exercising ordinary care or not. It would not be a question of care, but of absolute right.

“ It appears that the stream meandered through the valley, crossing the lands of many different owners, and that, more than thirty years ago, the respective owners within the city began, one after another, to straighten that part of the stream which was upon his own property, making it, as a whole, considerably more direct, and one after another, also, they each, upon his own ground, inclosed the stream in a sewer, and the city, from time to time, built culverts under the streets which it crossed, so that, for ten or more years, some parts of the stream within the city were inclosed and some parts of it were open, till at length every owner south of Court street had inclosed that part of the stream on his own land, making it altogether a continuous sewer from Court street to Front street. These facts would not constitute it a work of the city government, or throw upon the city council the exclusive obligation to keep it in repair, excepting such parts of it as were on city property. For, although it might be reasonable that the city should assume the care and responsibility of the sewerage of so *644large a portion of the surface of the city, and a part of the drainage of which was so difficult, and the city might have, or might have obtained, poAver to do so, yet it would belong to its legislative powers, the exercise of Avhich is discretionary with the city council, and can not be enforced by suit, and not to its ministerial duties, which are imperative, and may be enforced by legal proceedings.

“Noav, if you find that these several owners and the city have acquiesced in the adoption of the sewer, and that important changes in grades and otherwise have been made on the faith of such acquiescence, and the surface of the whole valley has thus been raised far above the original surface, and permanent improvements have been constructed thereon, no one of such owners can now be alloAved to claim that things shall be restored in the valley to the original condition. It has become to them a substitute for the natural stream, and must be considered as if it had been constructed by mutual agreement, and the obligation the OAvners were under to each other was to exercise reasonable and ordinary care in keeping their respective portions of the sewer in repair.

“ If the defendants suffered the sewer upon their property to become broken or obstructed, so as to endanger the overflow of the property above it, it was a nuisance, and it became the duty of the defendants to repair it so as to remove the obstruction: Provided,' their obligation to repair has not been excluded by a dedication to and acceptance by the city; and *provided,*said obligations had not ceased by conveyance of the property.

“Again, as I have already said, the fact that the proprietors of lots and the city, as proprietor of the streets, constructed on their properties, respectively, a sewer, would leave each proprietor responsible to 'each other, and to all the world, for the repair and care of that part of the sewer which such proprietor had constructed, and that responsibility would run with the property, so that each successor to the ownership of property of the original builder of the sewer, on any lot, would succeed to the responsibility of *645repairs of so much of the sewer as was upon such lot. In fact, that part of the sewer which was built upon the lot of any one owner was a *separate sewer,*in legal contemplation, and the separate and individual property of the owner who built it, and of his grantees.”

The plaintiff excepted to these (and other) instructions. A motion for a new trial was made and overruled, and a bill of exceptions taken setting forth all the evidence.

The jury returned a verdict for the plaintiff', and assessed his damages at $5,675, for which judgment was entered.

It is assigned for error., among other things, that the court misdirected the jury, and that the verdict is contrary to the law and the evidence.

*Aaron F. Perry*and *F. A. Ferguson,*for the plaintiffs in error.

*Stallo Kittredge,*for defendant in error.

Welch, J.

This case has been twice elaborately argued, and we have devoted to its consideration much time and labor, but have been unable all to unite in any opinion disposing of the case. A majority of the members of the court, however, concur in holding that the court below erred in its charge to the jury touching the defendants’ obligation to repair the sewer, and that the verdict of the jury, based as it must have been upon that charge, is contrary to the law and the evidence. The other questions raised and argued by counsel we leave untouched. I refer to the questions whether the sewer has been dedicated to the city, so that the city has become liable; whether the defendants, as between them: and parties who do not hold under the builders of the sewer, are liable for failure to make repairs; and whether' the defendants discharged themselves from liability by parting with their title a short time before the happening of the injury. What we decide is, that the defendants, as between them and others who hold under the original proprietors, are under no obligation *646to repair that portion of the sewer lying within their premises.

There is no evidence tending to show that the defendants did any act, or in the management of their premises wore guilty of any omission, which caused the breach complained of. To abstain from such acts and omissions, we think, under the peculiar circumstances of the case, was the only duty which the law imposed upon the defendants, as between themselves and the other proprietors.

Previous to the erection of this sewer, its builders had the right to the uninterrupted flow of the natural stream, and they were under no obligation in respect to it, except to abstain from *acts*by which it should be obstructed. They were not bound to repair. Their duty was a duty of omission merely. By common agreement they substituted a sewer for the channel of the stream, in such form as utterly excludes the idea, if not the possibility, of restoring the stream to its natural channel. By this act they extinguished their right to the flow of the water as a natural stream. Whatever rights and duties devolve upon them, *inter se,*in relation to the new and substituted structure, must'have their origin and foundation in the *agreement,*express or implied, under which it is made. The obligation to repair, in such cases, is an implication of law arising from the nature and uses of the structure. The duty to repair is implied, because it is reasonable, and therefore supposed to be within the original intention of the parties. There is no inflexible rule of law imposing this duty, as between the several proprieters or builders of such a structure. I admit the general rule, but it is a general rule simply because this method of keeping up repairs is *generally*the most reasonable, convenient, and equitable method of maintaining the structure. When this reason ceases, the rule ceases. When the nature and uses of the structure are such that it would be unreasonable, inconvenient, and inequitable, there seems to be no foundation for the rule. Such we understand to be the case here. This work was simply the carrying out of a *scheme,*concurred in by *647all, for the improvement of the city. It was a unit, every part of it dependent upon every other part, so that no part of it could be omitted or removed without marring or destroying the whole. It was, moreover, intended to be permanent. The thirty to fifty feet of earth placed over the sewer was put there to remain. The sewer was intended to be buried out of sight and out of reach, and to be superseded, when the growth of the city should require it, by a better one. The grand object was to fill up the valley, make it a suitable site for a city, and cover it with permamanent buildings. The sewer was a necessary *fart*of that work, and merely incidental and subsidiary to it. No one of the projectors would have thought for a moment of binding himself, or of asking his co-adjutors to be bound, after the work should have been completed, to remove the earth, and repair his separate section of the sewer. No such intention could have existed. No one would have been willing to take upon himself such a burden, and no wise person would be willing to risk his interests upon the contingency that *every*proprietor would, at all times, keep up repairs. It is easy to suppose cases where such an agreement would be impossible of execution, and therefore could not be supposed to have been within the contemplation of the parties. Such would be the case where adjoining proprietors construct an arched sewer along the *line*between them. The work, from its very nature, becomes a unit — a common work — no matter which part, or how much of it, was actually built by either; for neither party could repair, or rebuild, without the cooperation of the other. Such, though not in so marked a degree, is the character of the structure here. Though built in parcels, as a mere mode of apportioning its cost, in its design and intended uses it is a unit; and it is unreasonable to suppose that its repair or reconstruction was not intended to be a matter of common interest and common burden. No proprietor can repair his section of the sewer without trespassing upon the grounds of his neighbors. The sections of the sewer next to the various street-crossings can not be repaired without destroying the streets. Who shall repair *648that part of the sewer traversed by Culvert street ? Shall it be repaired by the city, or by the owners of the lots ? It is very plain that the original proprietors anticipated the building of an important part of the city upon these grounds, and the division of it into lots, which would grow smaller and smaller by successive subdivisions; thus indefinitely dividing up the responsibility of keeping in repair the common sewer, on which, to a great extent, the value of the property depended.

I suppose the intention of its builders was, not that the sewer should remain in its original condition *forever,*and be kept in that condition forever by the uncertain method claimed, but that it should serve a temporary purpose merely, in aid of a permanent work. They intended it to hold up the earth, and to serve the purposes of a sewer, until, by the increase of the volume of water cast upon it, or on account of its dilapidation, the city, or the lot-owners, by concert among themselves, should see proper to supersede it by a larger and more permanent sewer, near the surface of the earth, where it could be repaired without disturbing the foundations of the city, and at comparatively small expense. I think the sewer has long ago served the purpose intended. It ought, long before this injury happened, to have been superseded, and have become a thing of the past. It is not of sufficient capacity much longer to drain that part of the city, and it is folly, in my judgment, to insist upon maintaining it in its presents position, either by individual and sectional repairs or by concert of action. That part of the city eminently required such a sewer; and if the city has not long ago adopted it as a city sewer, it seems plain to me that she ought to have done so, or else she ought to have supei’seded it by a better one, adapted to the present necessities of the city. But if it be true that the city, as a municipality, has not adopted the sewer, so as to make itself liable, it by no means follows that the builders of the sewer have not dedicated it to the general *public,*and thereby, as between themselves at least, agreed to release each other from individual responsibility for repairs.

*649While the sewer is being subjected to that *user*by the public which may in time ripen into an acceptance of the dedication, I can not see on what principle- of law it can be implied that there is an agreement between the owners that each shall continue to exercise his *individual*rights, and discharge his individual obligations. Such an agreement is inconsistent with the idea of a dedication. That it was intended to withdraw this work and structure from individual control, and make it -a thing of common or public interest, is evident from its very nature. If the builders did not intend, and therefore impliedly agree among themselves, to dedicate it to the general public or to the city, they at least intended to make it a thing of common interest and common obligation among themselves. They intended, absolutely and forever, to extinguish the natural stream, and to supersede it by a sewer which should be to each proprietor a gwasi-natural stream, subjecting him to no new obligations, such as were not incident to the natural stream.

Under such circumstances, a majority of us think that the court erred in holding, as we understand the court in its charge to have held, that the defendants were bound to make the repairs in question. It is true the court does not say in so many words that the defendants were bound to make these repairs, but the ehai’ge could have been understood in no other sense by the jury. In those parts of the charge where the court speaks of the defendant’s duty as being merely that of “ exercising reasonable and ordinary care ” in making repairs, the court must necessarily be understood as referring to the *time*and *manner*of making the repairs, and the *knowledge*of the defendants of their necessity. The burden of *making*the repairs is clearly and exclusively imposed by the court upon the defendants. The defect to be repaired was well defined ; it was a breach in the arch of the sewer. There was but one way of repairing it — namely, by removing forty feet perpendicular of earth from above it, and reconstructing or readjusting the stones of the arch; and the simple question was, *who*was bound to do that work ? The court plainly told the jury, in sub*650stance, that the duty of doing the work devolved upon the defendants, and that they could only escape responsibility by making all necessary and “ reasonable ” efforts, and exercising due care,” in its performance. Their section of the sewer was “ a separate sewer; ” no one else was bound to repair it'; the whole duty of repairing it rested upon the defendants; and they were bound to discharge that duty in the same way as men of ordinary prudence discharge any other duty imposed upon them. .

This charge, we think, was contrary to the law of the case, and for this error the judgment must be reversed.

*Judgment reversed.*

Rex and Gilmore, JJ., concurred.

White , J.

I dissent from the principle of this decision. Its effect is to exonerate the lot-owners from all responsibility for the care and maintenance of the sewer, without regard to whether the city had or had not assumed such responsibility.

The general rule of law is that where the owner of land, without willfulness or negligence, uses his land in the ordinary manner of its use, though mischief should thereby be occasioned to his neighbor, he will not bo liable in damages. But if he brings upon his land anything which would not naturally come upon it, and which in itself is dangerous, and may become mischievous, if not kept under proper control, though in so doing he may act without personal willfulness or negligence, he will be liable in damages for any mischief thereby occasioned. *Rylands et al.*v. Fletcher, 3 Law Rep. (Eng. and Ir. App. Cas.) 830.

In the present case the lot-owners respectively, for the benefit of their several lots and to enhance their value, filled them up above the natural surface, leaving below a sti’ucture in the form of a sewer as a channel for the waters of Deer creek.

In principle, it could have made no difference whether this structure for the conveyance of the water had been built above or below the surface of the lots. It would in *651either case have been on the premises of the lot-owner. *Cujus est solum ejus est usque ad ccelum.*

Possibly, from the history and nature of the work, the general liability of the lot-owners may have been so modified as only to require from each the exercise of reasonable care for the maintenance of the sewer on his own land. This was the view taken by the court below. But however this may be, I can discover no ground on which the lot-owners can be wholly exonerated from responsibility.

The work was intended by all the parties to be permanent., This is apparent from its nature and' the uses it was made to subserve. Care, supervision, and repairs *were*indispensable to its maintenance; and as the duty of maintaining the structure resulted from its original construction, it would seem but reasonable that this duty should rest on those respectively by whom and for whose benefit it was built.

If any one of the lot-owners had filled up bis lot and built the structure which was in fact built, independently and disconnected from any similar work on the adjacent lots, there could be no question but that he would be liable for any damage occasioned thereby. "While this liability, as between themselves, may be modified by the adjacent lot-owners uniting in extending the work upon their respective lots, yet, it seems to me, there is no ground upon which the extension of the work can. be held to operate as a discharge of the several lot-owners from all duty in respect to maintaining it.

Nor do I think the magnitude of the work, or of the risk consequent upon the failure of the lot-owners to keep the sewer in repair,' exonerates them from liability.

The same principle that would require the use of proper care and skill in the construction of the work, would continue to operate for its maintenance. And it may be remarked that while the lots have been greatly enhanced in value by the filling up of the valley and the substitution of the sewer for the original water-course, yet it appears from the testimony in the case, that if the break in the sewer on *652the lot in question had been repaired in time, it could have been done at a comparatively small expense.

On the assumption that the sewer has not been adopted or accepted by the city as one of its public sewers, the effect of the decision seems to be that no one is responsible for its repair or maintenance.

As the decision of th'e court is placed solely on the ground of the non-liability of the lot-owners, the consideration of the other questions in the case becomes immaterial.

McIlvaine, C. J., concurred in the dissenting opinion.