The Providence news. (Providence [R.I.]) 1891-1906, 1898-12-13
Grade Of Manton Avenue Changed and Too
Much Water Went Into Sewer.
PLAINTIFFS PROPERTY FLOODED.
City Contends That Release Which King Signed
Rslisvss Il From Responsibility The Court
Does Not Sustain That View.


i'm his suit against the city OF .proyi-
denoe To recover damages for turning
more surface water into the Marion
avenue saver rhan il could hold. and
by its overlooking damaging his prom
ises, for the Appellate court today
overruled ihe demurrers filed by the
city's counsel.
The case stated i'm the plaintiffs
declaration is that the city OF Provi-
dence constructed sewer in AIanton
avenue. "A public highway. for the pur-
pose of carrying of the surface water,
sewage and drainage from that ave-
nue. and land adjacent thereto. The
plaintiff, who was a land owner on the
highway. was assessed his proportional
part OF the expense OF constructing the
sewer. which assessment WAS paid by
him. Thereafterwards. on the 9th day
of October. 1891. he made application tn
the commissioner Of public works for
leave to connect his estate with the
sewer for the purpose OF taking the
drainage and sewage from his estate.
This application was duty granted. AT
the time the sewer was constructed IL
had sufficient capacity to receive and
carry away. and did receive and carry
away. without injury 10 the paintin.
all the sewage and drainage from Man
ton avenue and the land adjacent
thereto including the plaintiffs estate.
Subsequent TO the time when the plain
tin connected his premises with the
sewer, in 1s95. the city changed The
grade OF MantOu avenue and OF several
other streets connected Herewith.
whereby the surface water which had
formerly flowed In another direction I'm
Sfp
nue. and into the sewer. which. not hav-
ing been designed nor constructed by
the city 10 receive and discharge the
surface water OF the additional streets
and territory, and being OF insufficient
capacity for this purpose. became con-
gested and overfiowed upon the plain
tins premises, causing him to be dam
aged
The plaintiff alleged that the con-
duct OF the defendant I'm thus turning
the additional surface water into the
sewer was wrongful and negligent. and
that ne was entitled to recover the
damages which he has sustained.
The defendant demurred to the dec
laration. setting up that the Manton
avenue sewer IL a part OF the sewer
system OF the city: that II IL not re-
auired TO construct said sewer of such
size and dimensions as would carry off
drainage which from time 10 time after
such construction was or might he
turned therein IA part OF the system.
that IT had the right 10 turn the sur
face water from the streets into the
sewer that the defendant IL not liable
for any defect or want or efficiency In
the plan OF drainage and sewerage
adopted by II. and also that the de-
fendant is not liable because the plain
tiff had no right TO connect his prem
ises with the sewer. under the statute
except upon executing To the city re-
lease of all damages which might at
any time happen TO his estate in any
way resulting from such connection.
In support of the demurrer the de-
fendant's counsel argued that the only
substantive fact upon which the al
legged negligence is based is that the
sewer was not OF sufficient capacity To
carry off the surface water turned into
n by the change OF the grade of GER
tain streets. I'm addition to the amount
OF water which had heretofore been
turned into IL. That there is no sub
stantiye difference between the state
ments of fact In the declaration and
those In Baxter va Tripp IL R. l., go.
Judge Tillinghast. who writes the
opinion OF the court. from which the
above statements are taken. says: I'VE
think the last named contention IL un>
tenable. The facts in Baxter vs. Trip
were materially different from those i'm
the case before us. In that case the
declaration alleged that the city wrong
fully and negligentiy constructed
sewer in Lippitt street and wrongfully
and negiigently used and maintained
the same, whereby the plaintiffs es-
tate was flooded and damaged. IL was
neither ailaged nor claimed I'm that case
that after the sewer was built large
amount or any amount or surface wa
ter. in addition to that originally in
tended To be taken care Of by the
sewer, was turned into IL by changing
the grades OF streets i'm the vicinity. or
otherwise. And the court held that
under the agreement signed by the
plaintiff at the time he applied for per
mission 10 connect his premises with
the sewer. sail agreement being sim
liar 10 the one here set up by the de-
fendant in its plos I'm bar, which We
viii consider later, the action could not
be maintained"
Attention Is called by Judge Tilling-
hast TO the fact that. while in the pre-
vious case the incapacity OF the sewer
when constructed was the thing COM
planned of in the present one the over
taxing OF the sewer in the manner de
scrfbed after construction IL the objec-
tionabic thing. and says I'VE think
TINT In such circumstances the city
pnay properly be held liable for the
oamaRes sustained thereby. and hence
that the demurrer 10 the declaration
must be oyerliled.'
As to the plaintiffs demurrer to the
defendants. plea I'm bar of the release
signed by the plaintiff. which demurrer
Was w two grounds. first. that the
agreement was not under seal. and. sec
cnd that the bringing Of the plaintiffs
ectior dces net constitute a breach OF
The agreement. ~ the damages were
not oecesioned I'm any manner by the
construction use or existence OF such
drain or conne ction." the court over
riies the hrst ground and sustains the
second. Holding that the agreement IN
question VAS evidently entered into In
view vffBc farts aud conditions exist
ms St the umc. together with uch J