Evening star. [volume] (Washington, D.C.) 1854-1972, 1900-08-28
Liability of thegDistrict for Damages
Caused Thereby.
OPINION BY, MnRNEY BRANDENBERG
Municipality Not, Responsible for
an Alleged Nuisance.
QUOTATION OF AUTHORITIES

The assistant attorney foi the District Of
Columbia, Mr.. Clarence A. Brandenberg,
has submitted to the Commissioners an
opinion on the subject of the responsibility
OF the District government for damages
alleged to have accrued as a result CT
grading streets, &C. The point made by
Mr.. Branderberg. and CLEANED from judi
cial opinions handed down in various high
courts OF the land, is that the municipal
government is not responsible or liable Tor
damages for injury in such cases, or, to
quote from an opinion cited by the attor-
ney: "A city is not liable for consequential
injuries to adjoining property resulting
from raising the grade of the street. al
though the result may be to interfere with
the flow of the surface water and cause IL
to accumulate on the premises of another;
neither is a city liable for wholly failing to
provide sewerage or drainage"
The opinion was submitted on the report
of an alleged nuisance existing on the va
cant ground at the Ecorner OF 12th ana n
streets northeast. Mr.. Brandenberg says:
The facts do not fully appear among the
papers, but supplemented by statements OF
the health officer, 1t appears that r street,
at the intersection with 18th street nortn-
east, was graded by the authorities rms
left the ground, adjacent thereto below the
level of the street as graded; that for some
years waste water from adjacent premises
and rain water flowed over the lot In ques-
ton and then crossed r street. ultimately
reaching a natural stream or outlet to the
river. In consequence of the grading OF
the street the water can no longer now as
1t formerly did, but aecumulates upon the
adjacent private property. becomes foul.
and Is, In the judgment of the health de-
partment, q nuisance The health depart
ment sought to require the abatement OF
this nuisance by proceeding in the Police
Court against the owners Of the land
Liability Of Owner.
eft seems that the Judge holding the
Police Court discharged the defendants on
the ground that the District authorities had
obstructed the natural flow of the water by
filling in r street, and that 1t is in conse-
Quence the duty Of the District to abate the
nuisance and not of the private owner
Divested of other. elements the question for
consideration Essays Mr.. Brandenberg.
the liability of the owner of the property
iE question to 8bate a nuisance which mas
existed since the grading of the street ana
which would not have existed but for such
grading Thererdin4nces of the late board
of health made the law of the District
seem to ccverfthe7 case in question unless,
as held by thelpresiding judge OF the Poiice
Court, 1t is the dAty of the District TO
abate it beca Use migrating the street the
natural flow of water from the lot was ar
rested. ISL
I'm considering this matter 1 am assum-
ing, as appears from the papers, that the
water which accuunllates upon the vacant
lot In question does not flow from the
street, becauseltit is conceded that the DIS
trict has no right to SO grade the street as
to require the surface water from the street
to flow on private property.
eff it is the duty iof the District to abate
the nuisance because 1t resulted from the
grading. it would seem to follow that the
District would be liable In damages to the
owner of the properly for failing to do so.
And while that View Is suggested by some
authorities 1t cannot be, in my opinion the
law of this, jurisdiction in view of .ue de-
States that the District is not liable for
damages caused by changing the grade Of
streets. -r.
The Prevailing Opinion.
"While there is some conflict Of authority,
the prevailing opinion seems to be that
cited In Freburg against Davenport (63
Iowa. 119.
"a city has the undoubted right to bring it's
streets to grade in such way, time and man.
ner BIS it sees fit; and 1t has the same right
as the owners of abutting lots to protect
itself against surface water; hence where
defendant city without negligence brought
its streets to grade but failed to construct
adequate cutters to carry off the surface
water which flowed from the graded street
upon the plaintiffs premises which were
below the established grade, it was held
that the city was not liable to the plaintiff
for damages caused by such water, but had
the right to presume that the plaintiff
would bring his premises to grade, and thus
protect himself from the overflow"
Mr.. Brandenberg quotes several other au-
thorities, and concludes:
las each day that a nuisance is main
tanned constitutes a new offense, l suggest
that new infornla don be produced against
the owner of the property upon which the
nuisance exists, and that If the former rui-
ing is adhered to in the Police Court, that
that the case may be reviewed in the Court
of Appeals of the District of Columbia"