The Rock Island Argus. (Rock Island, Ill.) 1877-1885, 1885-07-07

dition.
The cityiu said contract further agree |
that when said sewer was completed to |
the railroad embankment that it would |
continue it through the same into the
Sylvan slough and this the city has failed
to do. Had the city continued said sew
er as agreed and it had become obstruct-
ed the city had the right to enter the
premises and repair same. which might
have been done at small cost.
But having failed to do its part, 1t
would not, in my opinion, De allowed to
claim that it should not be held liable be-
cause it was doubtful whether the Lum-
Der company has fully carried out its part
of the contract, when it had fall power to
see in what manner said sewer was being
built
Dillon, in his work on municipal cor
porations, Sec 1851 lays down this rule
There is municipal liability where the
property of private persons is flooded
either directly or by water being set back,
when this is the result of negligent exc
cution of the plan adopted for the con-
struction of cutters, drains, culverts or
sewers, or of the negligent failure to keep
the same in repair and free from obstruc'
ton, and this whether the lots are below
the grade of the streets or not. The cases
support this proposition with great unan
unity"
In our state, in Nevins City of Peos
ria Al, ILL., 500, the Supreme court says:
The city is the owner of the streets, and
the legislature has given it power to
grade them, but it has no more power
over them than private individual has
over his own land, and it cannot under
the specious plea of public convenience
be permitted to exercise tina. dominion to
the injury of anothers property in mode
that would render private individual re-
sponsible in damages without being re-
sponsible ITSELF" And further on they
say ''the same law that protects my right
of property against invasion BY private
individuals must protect it from similar
aggression on the part of municipal COR
porations. A city may elevate or depress
its streets, as it may think proper, but if
in so doing it turns stream of mud and
water upon the grounds and into the cel>
lars of one of its citizens or creates in his
neighborhood 6 stagnant pond that brings
disease upon his household, upon what
ground of reason can it be insisted that
| the city should be excused from paying
for the injuries it has directly wrought"
| Again the court says: The cases (ex>
amined by the courO divide themselves
into two classes, one of the larger classes
holding that city is only held to reason
able care and skill in grading its streets
and that if these are used, it can shield
itself under its corporate powers from lis
ability to individuals, the other holding
that city in the management of corpor-
ate property must be held to the same re-
sponsibilities that attach to individuals
for injury to the property of others; we
cannot doubt that the latter is the strong
er rule"
1t might be commended that the damage
was not occasioned by the negligent con-
struction of the sewer in question, By the
city, but by the negligence of the Lumber
company in building it, To this the ans
wer would be that the city had the right
to enter the premises and build and re-
pair the sewer, and if the Lumber COM
pany failed to comply with its contract to
build the sewer in proper manner, the
city had the power to compel the compa>
ny to do that and if the company did not
then build it in accordance with the idea
of the city, the city had the right to go on
to the premises and do so itself.
1 The same would be true with regard to
the distractions, as the Lumber company
agreed in the contract at all times to use
due diligence to prevent the obstruction
of said water course as projected from the
accumulation of any and all kinds of re
fuse matter from their mills"
In the city of Alton Hope, IS, Ill,
page 1877, where the injury was caused by
break in a gutter, constructed by the
city. through which water poured into
the premises of the plaintiff, the Supreme
court says; The city in the exercise of
its authority under its charter constructed
these cutters for the purpose o. conduct
ing the water down Fourth street, and
keeping it from flooding the property of
the plaintiff and Others in that part of the
city. Having assumed this responsibility
it was bound to keep these cutters in res
pair. The legal obligation of the city to
lay out street, build sidewalks, con-
struct cutters, grade and pave streets in
one voluntarily assumed, but when the
city constructs these improvements for
the benefit OF the public, it then becomes
the duty of the city to see that they are
kept in repair. The law governing this
case has been fully settled in Nevins v
City of Peoria above quoted) and other
cases cited
Thus it will be seen that when the city
takes upon itself the responsibility of
l providing sewers and cutters it must do
so in a proper manner and must keep
them in repair when built. In this case
the city did attempt to provide for carry
ing off the water by the sewer, and in so
doing, made contract with the Lumber
company which is very deficient in its
provisions, but this will not relieve the
; city from liability. Had the city made no
$ contract whatever with the Lumber com
| pany, the Lumber company would have
been under the necessity of providing for
8 and carrying off the water from this sew
er in proper manner; and should it fail
e to do so, it would be liable in damages to
; the person whose property should be in
jured.
e To sum up the matter, the city had an
outlet to its sewer which the Lumber
company were bound to regard in their
improvements, but which the city allowed
! the Lumber company to change without
providing in such contract for the proper
!, construction thereof. The city could
u have relieved itself from all liability b,
u its contract with the Lumber company BY
u requiring properly constructed sewer
Is which it had not only the right, but
which was its duty to supervise, and THU
II it failed 20 do.
q This fact, together with the neglect tt
! carry out its part of the contract, would
be used to great advantage against thu
d city. Having failed to provide that which
the law requires, the city would be liabl'
= for damages to the property of person
u caused by the backset of the water
. In regard to the question as to whethe
Z the sewer is upon the land on Bale,
Davenport. | will report that had Mr.
II g. Stoddard surveyor make measure