Savannah morning news. [volume] (Savannah) 1868-1887, 1882-01-06
THE QUESTION OF DAMAGES.
Liability of the City or savannah
for overflow OF B1bO and Perry
Canals.

of the Mayor and Aldermen in regard to the
proper care of Bnbo and Perry canals,
holding that the city is liable at all e0eT'ts to
protect the proprietors Of adjacent lands,
as will be seen by the decision below;
The Mayor and Aldermen Of Savannah,
plaintiffs in error, VS.. VIM. CleaTy, de-
fendant in error. In the Supreme Court.
sPEER, j., delivering the opinion.
William Cleary commenced his action Tor
damages against the Mayor and Aldermen
of Savannah, on the 9Th day OF January s
1S74-the amount claimed being $4,000.
The suit was for damages sustained by the
overflow Of his lands and crops by the
sewer waters OF Bilbo canal, and OF Perry
street lane canal-two canals used by Sa-
vannah for the purpose OF draining the city
by means of sewers emptying into them.
Cleary planted two fields adjacent to said
canals-One OF fifteen acres, north Of and
next to the Perry canal, the other Of eighty
acres east of and next to Bilbo canal. 1t
was alleged that the crops OF cotton on
the fifteen acre field, and the crop
of oats, hay, sweet potatoes, corn,
peas and straw on the eighty acre field, as
well as grass for pasturage Of cattle (all in
fine condition at the time) were totally de-
stroyed by the overfows of said tracts OF
LAND by the waters from the said canals
and that the overfows occurred on the fol-
lowing dates (or about them: August 10th
and 18th, 1871, and August 9Th, 1872. Both
fields were inundated with water from said
canals, in the month of August, 1871 and
only the fifteen acre field in August, 1872-
this fifteen acre field having been planted
in cotton on both occasions. The declara-
tion alleged that all the overfows were due
to the insufficient banks and bad condition
and repair Of the Bilto canal, and OF Perry
canal; and, also, to the fact that both canals
were not kept open and 10 such condition
as to protect the proprietOrs of adjacent
lands, but, on the contrary, both canals
were stopped up, and so INSTRUCTED and
kept by Instructions placed therein By the
city, that the water brought into the canals
from the city sewers could not escape into
the Savannah river, as was formerly the
case, but were necessarily emptied upon
Cleary's lands, adjacent thereto, and over
flowed the same. The declaration also
alleged that the city was bound to keep said
canals in order and open, so as to protect
the lands Of the adjacent proprietors from
overflow, and so neglected its duty as to
unnecessarily cause the damages to plaintiff.
The defendant pleaded, first, the gen
eral issue. Second, that it was not bound
to keep the eastern bank of Bilbo canal In
order or repair, so as to prevent overflow of
or damage to the adjacent lands. AlsO, that
the city was not bound to provide good and
sufficient banks or dams on said eastern side
of said canal, nor was it under any obliga-
ton to keep the same IN good repair.
On the trial of the cause, after hearin Q
the evidence and receiving the charge of the
court, the jury on returning into court rem
deIed a verdict for plaintiff against de-
PENDANT for IS 067 so The defendant then
made motion for new trial on the follow
lowing grounds:
First. Because His Honor the Judge erred
in charging the jury as follows:
cit is conceded by the defendants, the
Mayor aud Aldermen Of the city of Savan-
nah, that the Perry street lane canal and
Bilbo canal are controlled by them as q
part of the sewerage and drainage system
of the city of Savannah, and l charge you
that they were required by law to keep
| such banks or embankments along said
canals as would securely keep the waters
within the channels of said canals and to
| keep them open and in such order as to
protect the proprietors of adjacent lands,
| and they were required to do this in such q
manner as to provide against the changes
of weather, which are usual and ordinary
at different seasons of the year in this lati-
| tude."
Second. Because His Honor the Judge
erred in charging the jury as follows:
81 charge you further, il you find from
the evidence that at the time set forth in the
plaintiffs declaration the defendants had
put Instructions in said canals, or had per
mitted them to become INSTRUCTED by dirt
falling In them and grass and weeds grow
| ing up In them, or IN any other manner, and
that by reason of such distinctions the
water overflow and broke through the
banks OF said canals and overfoWed the ad-
| jacent lands occupied by plaintiff and
destroyed his crops growing thereon
| then the plaintiff is entitled to re-
cover damages for the injury and loss
| the evidence that distractions were put in
these canals by defendants to enable them
to make repairs thereon, the law of theil
liability is not changed; they were bound to
| so conduct and direct these repairs as to
protect the proprietors OF adjacent lands
| from damage and injury"
Third. Because His Honor the Judge
erred In charging the jury as follows:
"And l charge you further, If you find
from the evidence that the injury aud loss
complained OF by plaintiff was in no wise
caused by the negligence and default of de
| PENDANTS, by reason of the bad repair and
condition of said canals, or by reason of OBJ
| structioDs put therein, but was the result OF
a most extraordinary storm and rainfall
| against which human foresight, by the ex-
ercise of proper care and precaution, could
not provide, and which by the excessive and
extraordinary fall OF rain caused the canals
to overflow and submerged the lands occu-
pied by plaintiff, then, defendants were not
by plaintiff, aud no recovery can be had
| against them"
Fourth. Because His Honor the Judge
erred in charging the jury as follows:
"If the city Of Savannah so obstructe
the canals, or portions of canals, it took
| and used for drainage purposes, and kept
| their banks in such condition as necessarily
to food the plaintiffs premises, it is liable
for any damages he may thereby have sus-
tanned, and the city is not excused by ex-
| traordiuary raine, if the jury find that the
city was originally in fault by closing 10
said canals, and not providing them with
suficie ( banks, and If such original fault
was the pToximate or Immediate cause OF
the injury" That l charge you to be the
law.
Fifth. Because His Honor erred in charg-
ing the jury as follows:
"a storm of wind and rain may be of
such an extraordinary character and the
violence so unprecedented that human skill
and foresight could not be proof against it,
but in this case here, you must find In order
to find this to be the act of God, you must
ind It to be such an extraordinary fall Of
rain, so unprecedented in its character,
that no human foresight, no care on the
part Of the city in constructing and repair
ing that canal could have prevented the
plaintiff Is land from being submerged"
Sixth. That His Honor the Judge erred in
giving a charge to the jury which, as a
whole, had a tendency to mislead the jury
and give them wrong impressions as to the
facts proved, and presented wrong issues to
the jury, and failed to present the true
issues to the jury.
A full copy of said charges as given being
annexed to this motion and marked Elk.
hibit A.
Seventh. Because His Honor erred
in and by said charge he made
the liability of the Mayor ard AL
dermen of the city OF Savannah to the pro-
prietors of land neighboring on the canals
used for drainage purposes that of insurers,
and, therefore, bound to extraordinary dill
gence, while they were only liable for ordi-
nary diligence in the care and maintenance
of said canals.
Eighth. Because His Honor the Judge
| erred in his refusal TO permit the de-
fendant to put in evidence the deed made
by William S. Lawton and George 8. Owens.
trustees, ETC., to the Atlantic and Gulf
Railroad Company, dated July 9th, 1870,
which deed conveyed to said company the
eastern dam, or bank of Bilbo canal.
Ninth. Because the verdict of the jury
was contrary to law.
Tenth. Because the verdict of the jury
was contrary to the evidence, and strongly
and decidedly against the weight of evil
dence, and without evidence to support it..
Eleventh. Because the verdict of the jury
was contrary to the charge Of the court.
Twelfth. Because the damages found
were excessive.
Which motion for new trial was over