Opinion
6 Div. 246.
February 28, 1933. Rehearing Denied March 21, 1933.
Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.
Action for damages by Roy M. Johnson against the City of Birmingham and the Dunn Construction Company. From a judgment of nonsuit, plaintiff appeals.
Reversed and remanded.
Certiorari denied by Supreme Court in Johnson v. City of Birmingham et al., 226 Ala. 400, 147 So. 456.
Count 1 of the complaint alleges, in substance, that plaintiff was the owner of property in the city of Birmingham, and that defendant maintained a pipe line under and across an adjoining avenue for the passage or drainage of water accumulating at the point on a certain date, and as a proximate consequence of the negligent maintenance of such pipe it was caused to overflow upon and damage plaintiff's property. Subsequent counts (2 to 40, inclusive) claim for recurring overflows.
Count 41 is as follows:
"Plaintiff claims of the defendants the sum of One Hundred Fifty no/100 Dollars as damages, for that, heretofore, on to-wit, the 7th day of November, 1928, he owned a residence which was at that time and at the present time occupied by himself and family as such, which residence is located at 2239 36th Avenue North, in the City of Birmingham, Alabama, and on the following described property: * * *
"Plaintiff further avers that on to-wit, the 7th day of November, 1928, a large amount of surface water was caused to flow in an open ditch in said City and on property owned by said City to accumulate on the northerly side of said 36th Avenue North in said City and on the property of said City at a point near and on the opposite side of said avenue from said plaintiff's said residence, which avenue because of its elevation at said point obstructed the free flow of surface water contained in said ditch and caused it to be accumulated against said avenue and to run over and onto and along same, and from thence to flow onto plaintiff's said property, and against his said residence and into the basement thereof, in large quantities, overflowing same and causing same to be and remain wet for a long time, causing vile, unpleasant and unhealthy odors, rendering it difficult to heat by means of the furnace installed in the basement thereof at the point in the basement at which the water overflowed, said residence not being equipped with any other means of heating, and rendering said residence, cold, damp, unhealthy and untenantable in cold weather, and greatly impairing and destroying the rental and market value thereof, and otherwise injuring and damaging plaintiff's said residence and property. Plaintiff avers that defendants negligently caused said water to accumulate against said avenue at said point and to run over and along same and from thence onto plaintiff's property, proximately causing the injuries and damages complained of in this:
"Defendants undertook to conduct the water flowing against the northerly side of 36th Avenue at said point and the water so accumulated along said avenue to a large open ditch by means of an underground pipe or conduit, but negligently failed to provide and maintain sufficient pipes, conduits or other means for the conduct and passage of said surface water, and prevent the same from flowing upon plaintiff's said property, as a proximate consequence of which negligence, same flowed in large quantities over, onto and along the surface of said 36th Avenue, and from thence onto plaintiff's property and against and under plaintiff's said residence, thus proximately causing the damages complained of.
"Plaintiff avers that he filed in writing with the City Clerk of the defendant, City of Birmingham, within one year from the accrual of the cause of action sued on in this cause, and more than ten days from the filing of this suit, to be presented by the City Clerk to the governing body of said City, a statement of said claim herein sued on, duly verified by affidavit."
Counts 42 to 80, inclusive, are the same as count 41, except that they set up different dates upon which the damage claimed occurred.
Defendant's demurrers to complainant were overruled.
Plea 6 sets up that the plaintiff petitioned the defendant city in writing to make certain improvements in Thirty-Sixth Avenue North, to wit, to pave it between the west side of Twenty-Fourth street and the east side of Twenty-First street; that pursuant thereto and subsequently defendant city adopted Improvement Ordinance 918-D, as provided by law, and by virtue thereof did pave Thirty-Sixth avenue, and as a part of the improvement constructed or installed the drain pipe alleged in the complaint to be insufficient; that said pipe was at the time of the alleged injuries and at the time of filing this suit, and is now, the same drain pipe installed or constructed under said ordinance.
Plea 9 is as follows:
"Comes the defendant, City of Birmingham, and for further answer to the said complaint as further and last amended, and each count thereof, separately and severally, says that there has been a former adjudication in favor of the defendant, City of Birmingham and against the plaintiff of the matters in dispute as set up by the complaint, and each count thereof, in this: That before this suit was begun, and on to-wit, the 22nd day of November, 1927, the City Commission of the City of Birmingham, Alabama, adopted an Improvement Ordinance entitled 'Improvement Ordinance No. 918-D,' and to provide for certain improvements on 36th Avenue, North, from the East property line of 21st Street, North, to the West property line of 24th Street, North, in the City of Birmingham, Alabama, which ordinance described the nature and extent of the work, the general character of the materials to be used and the location of the terminal points thereof, drawings, plans, specifications and surveys of said work and estimates, which should be prepared by the City Engineer as early as practicable and placed by him on file in the office of the City Clerk, and further provided that the cost of constructing said improvement should be assessed against the property abutting on the portions of the highway so improved, provided:
"That the cost of improvements at or upon street, avenue, or alley intersections, should be assessed against the lots or parcels of land abutting on said highways so intersecting for one-half block in each direction.
"That the cost of sidewalk improvements on street or avenue corners should be assessed against the lots or parcels of land abutting on or nearest to said improvements, and the cost of sidewalk improvements at the intersection of any alley with a street, avenue or other highway, shall be assessed against the lots or parcels of land abutting or cornering on the alley at such intersection.
"That no assessment should exceed the cost of such improvement or the increased value of said property by reason of the special benefits derived from such improvements.
"That the estimated cost of said improvement was $15,900.00, and the City Commission of the City of Birmingham would meet on the 3rd day of January, 1928, in the Council Chamber of the City Hall of Birmingham at 10:00 o'clock A.M. to hear any objections, remonstrances or protests that might be made to said improvements, the manner of making the same or the character of material to be used.
"The plaintiff's said lot abuts said 36th Avenue between 21st and 24th Streets; that said drain pipe mentioned and complained of in plaintiff's complaint is a part of said improvement so authorized and ordered by said ordinance and constructed in accordance therewith.
"That at the time of the adoption of said ordinance said ordinance was duly published once a week for two consecutive weeks in the Age-Herald, a newspaper of general circulation in said City of Birmingham, the first publication being made November 30, 1928 [1927], and the second publication on the 2nd day of December, 1928 [1927], and more than two weeks prior to the day set by said City Commission for the hearing and determination of any protests, objections or remonstrances that might be made against said improvement, the manner of making the same or the character of material to be used, and that a copy of said ordinance was sent by registered mail, postage prepaid, to the persons last assessing for City taxation the property which it was proposed to be assessed for said improvement, at their last known addresses, said notices having been mailed on to-wit, the 28th day of November, 1927, more than twenty days prior to the 3rd day of January, 1928; that full details, drawings, plans, specifications and surveys of said work and estimates were prepared by the County Engineer and placed on file in the office of the City Clerk, where property owners who might be affected by such improvements might see and examine the same; that at a meeting of said City Commission, held at the said time and place fixed in said ordinance and notice, all objections, remonstrances and protests against said improvements, the materials to be used and the manner of making the same were heard and considered and said ordinance was duly confirmed and said improvements finally ordered; that the plaintiff did not make or file any protests, remonstrances or objections to said improvements, the materials used or the manner of making the same.
"That notice was given on the 23rd day of March, 1928 and the 30th day of March, 1928, by publication in the Age-Herald, a newspaper of general circulation in the City of Birmingham, asking for bids for such work as prescribed by the Commission; that a satisfactory bid was received by the said Commission, and said Commissioner did on the 10th day of April, 1928, accept the bid of the Dunn Construction Company and did let the contract to make such improvements; that the said improvements were made pursuant to said ordinance and said details, plans and specifications, and under the supervision of the City Engineer of the City of Birmingham.
"That the Commissioner of the Department of Public Improvements of the Commission of the City of Birmingham caused to be prepared a roll or list showing the names of the property owners, and a description of each lot or parcel of land proposed to be assessed for such improvement and the amount proposed to be assessed against each of said lots or parcels of land, in accordance with the law, and said ordinance, and the same was properly entered in a well bound book, which was delivered to the City Clerk of the City of Birmingham; that the City Clerk gave notice by publication in the Birmingham News, a newspaper of general circulation in said City, doing City printing, on the 17th day of September, 1928, that said assessment roll or list had been delivered to her and was open for inspection in the office of the City Comptroller, the person authorized to make collections of said assessments, and that said notice stated the general character of the improvement, the terminal points thereof, and the streets, avenues, alleys or other highways or portions thereof, along which said improvement had been constructed, and that the 9th day of October, 1928, at 10:00 o'clock a.m., in the Council Chamber of the City Commission of the City Hall of Birmingham was stated in said notice as the time and place at which the City Commission of the City of Birmingham would meet to hear and determine any objections or defenses which might be made to such assessment or the amount thereof; that the plaintiff did not at any time on or before the date named in said notice, or at said meeting file in writing with the Clerk, or in her office, any objection or defense to the proposed assessment against his said property of or for a portion of the cost of said improvement, or the amount thereof; that at a meeting of said City Commission held on the 9th day of October, 1928, at 10:00 o'clock A.M., in the Council Chamber of the City Hall of the City of Birmingham, said City Commission heard and passed upon all objections, protests, and defenses to the proposed assessments which were filed; and by resolution duly and regularly adopted, ascertained, determined and adjudged, that the costs of said improvement so constructed under and pursuant to said ordinance was $12,117.27, and that the total cost of said improvements was not in excess of the increased value of such property by reason of the special benefits derived from such improvements, and that no charge assessed upon and against any lot or parcel of land was greater than the increased value of such property by reason of the special benefits derived from such improvements, and that all the lots or parcels of land so assessed abut on the parts of said highways improved under said proceedings, or on a highway intersecting said parts of said improved highways within one-half block of the highways so improved, and that all the lots or parcels of land so located were included in said assessments, and fixed the amount of the assessment against each lot or tract of land described and included in said assessment roll and by said resolution fixed the amount of the assessment against the plaintiff's lot at the sum of $258.28, as the proportionate amount of the cost of said improvement to be assessed against plaintiff's said lot and assessed said amount against plaintiff's said lot; that the judgment of the said City Commission so ascertaining, determining and adjudging that plaintiff's lot was benefited and increased in value by said improvement to the extent or not less than $258.28 stands unreversed, unappealed from and in full force and effect, and has been assented to by plaintiff and plaintiff has paid to the City of Birmingham a part and/or all of said assessment.
"Therefore, this defendant says that the claims set up and alleged by plaintiff in his complaint against this defendant have by said proceedings and said judgment been heretofore determined and adjudicated in favor of the defendant and against the plaintiff, and that the plaintiff is not entitled to recover in this action."
Stokely, Scrivner, Dominick Smith, of Birmingham, for appellant.
A municipal corporation acts ministerially in the construction and maintenance of public improvements, and is responsible for its negligence therein. City Council of Montgomery v. Gilmer, 33 Ala. 116, 70 Am. Dec. 562; Birmingham v. Kircus, 19 Ala. App. 614, 99 So. 780; Birmingham v. Greer, 220 Ala. 680, 126 So. 589; Birmingham v. Whitworth, 218 Ala. 605, 119 So. 841; Sisco v. Huntsville, 220 Ala. 60, 124 So. 95. Section 235 of the Constitution was intended to apply only to such injuries as were capable of ascertainment at the time the public improvement was being made. Hamilton v. Ala. Power Co., 195 Ala. 438, 70 So. 737; Meharg v. Ala. Power Co., 201 Ala. 555, 78 So. 909; Jones v. Jefferson Co., 203 Ala. 137, 82 So. 167; Pearson v. C. of Ga. R. Co., 215 Ala. 239, 110 So. 5. Said section does not afford a remedy for negligence in the construction, maintenance, or use of a public improvement. Authorities, supra; Tarrant City v. Pope, 221 Ala. 662, 130 So. 390; Birmingham v. Flowers, 224 Ala. 279, 140 So. 353; 2 Nichols on Eminent Domain (2d Ed.) 1248. Plaintiff could not be precluded by the assessment proceedings, since the original cause of the injury was not permanent. Birmingham v. Flowers, supra; Harris v. Tarrant City, 221 Ala. 558, 130 So. 83.
W. J. Wynn, T. A. McFarland, and Nesbit, Sadler Dunn, all of Birmingham, for appellees.
In making the assessment described in the pleas, the city commission acted judicially, and the question of special benefits involves a consideration of plaintiff's consequential damages. Goodman v. Birmingham, 223 Ala. 199, 135 So. 336. The finding of the commission as to the amount assessable against the abutting property standing unvacated or unreversed is res adjudicata and a bar to an action for consequential damages. Goodman v. Birmingham, supra; Ex parte Gudenrath, 194 Ala. 568, 69 So. 629; Huntsville v. Goodenrath, 13 Ala. App. 579, 68 So. 676; Tarrant City v. Pope, 221 Ala. 662, 130 So. 390. A special assessment is a final judgment which can be reviewed only by appeal seasonably taken, and cannot be collaterally attacked. Brock v. Decatur, 185 Ala. 146, 64 So. 73. The property owner is precluded unless he appears and objects. Birmingham v. Wills, 178 Ala. 198, 59 So. 173, Ann. Cas. 1915B, 746; Code 1923, § 2196.
Plaintiff in the several counts of the complaint seeks to recover damages for each recurring overflow of water onto his land, caused by the negligent maintenance of a certain conduit named in the complaint. The defense set up by the pleas is that of res adjudicata by reason of certain proceedings had before its council body and set up in the pleas. Demurrers to these pleas being overruled, plaintiff declines to plead further, and on account of adverse rulings on the pleadings plaintiff takes a nonsuit.
All of the questions involved in this appeal are presented in the two pleas 6 and 9 of defendant and demurrers thereto.
These pleas and demurrers thereto present the question as to whether or not the assessment proceedings, had prior to the making of the improvement as set out in the two pleas above, were a judicial determination as to the elements of damage claimed by the plaintiff so as to preclude plaintiff from recovery for negligence for the failure to maintain sufficient pipes or conduits to properly conduct surface water in the area in which is located plaintiff's property.
If the assessment proceeding is res adjudicata as to damage incurred by the plaintiff by reason of defendant's negligence in failing to maintain sufficient pipes or conduits to convey the water in the area during ordinary conditions, then the plaintiff must fail. If, on the other hand, the plaintiff could not have litigated the question of future damage for negligent maintenance, in the assessment proceeding, then the court is in error in holding that the plaintiff cannot recover.
The assessment proceeding, set up by defendant in its plea, is based upon section 235 of the Constitution of 1901, which changes the common-law rule, and it follows that assessment proceedings, such as are here set up in the pleas, conducted in all respects as provided by our Statutes, affording due process of law "(including notice, with opportunity to be heard in objection to the making of the proposed improvement, and again on the specific issue heard after the improvements are made, as to whether the value of the property has been thereby increased and including provision for trial by jury on appeal)," are conclusive upon the property owner as to that issue. Town of Tarrant v. Pope, 221 Ala. 662, 130 So. 390, 391.
Embraced within the issues of such assessment proceedings are such consequential damages as arise by reason of the permanent construction of the planned and specific improvement, including bad and faulty engineering. Town of Tarrant v. Pope, supra.
But, as we view the decisions, the issues in the assessment proceedings do not include, nor are they broad enough to cover, subsequent damages arising from negligence on the part of defendant either in the construction or maintenance of the projected improvement. In the Pope Case, supra, certain exceptions were made in line with the above, but, as we take it, these were not exclusive. In Harris v. Town of Tarrant the rule is stated as follows: "For an abatable nuisance the cause of action does not arise until the harmful consequences occur, and each occurrence or recurrence of such damages constitutes a separate cause of action. Alabama Great So. R. R. Co. v. Shahan, 116 Ala. 302, 22 So. 509; Sloss-Sheffield Co. v. Mitchell, 161 Ala. 278, 49 So. 851; Crawford v. Union Cotton Oil Co., 202 Ala. 3, 79 So. 299. But for an injury by a permanent and unabatable condition the damages are estimated on the hypothesis of an indefinite continuance of the nuisance, and thus affecting the permanent value of the property. In such event, one may not recover in successive suits, but his damages are awarded in solido in one action. Sloss-Sheffield Co. v. Mitchell, supra; Crawford v. Union Cotton Oil Co., supra." Harris v. Town of Tarrant, 221 Ala. 558, 130 So. 83, 84.
It seems to us that Anderson, C. J., in City of Birmingham v. Flowers, 224 Ala. 279, 140 So. 353, 354, has drawn the proper distinction, with apt illustration, where he says: "Where the channel of a stream is so obstructed by a permanent dam or fill as to cause a constant overflow upon another's lands, the damages are regarded as original and must be recovered in one action. But where the dam or fill is provided with a culvert sufficient to carry off the water of the stream in its usual volume, and causes only occasionally recurrent overflows, the damage is continuing, and each overflow constitutes a separate and distinct cause of action." If, therefore, the damages claimed are consequential as a result of the construction of the improvement described in the plea, free from negligence on the part of defendant in construction or maintenance, the plea would be good as res adjudicata. But, as we read the complaint in this case the claim for negligence is the maintenance of a pipe across Thirty-Sixth avenue in the city of Birmingham at a point indicated and described for the passage of surface water, the inadequacy of which pipe caused the water to overflow plaintiff's property to his injury.
Engineering is for the most part an exact science, and in the main it determines conclusions from data and measurement accurate in themselves and forming results which may be depended upon. But drainage is one branch of engineering wherein the flow of water to be controlled depends in a large degree upon estimates of rainfall over a period of years, and, while the terrain to be drained may be accurately surveyed and platted, the conduits for handling the flow must of necessity rest largely in the individual estimate of the engineer making the survey. The projected improvement may be correct from an engineer's standpoint and its construction according to plans and specifications free from negligence, imputable to the city, but, if it subsequently appears that the estimated pipe or conduit is insufficient to carry the water flow, a continuance of this condition would be actionable negligence, entitling plaintiff to damages. Such injuries as are here complained of did not exist, nor could the damages therefor be ascertained upon the construction of the improvements described in the pleas, but they arose subsequent thereto, as the result of the same in conjunction with subsequent intervening causes, or as was said in Meharg v. Ala. Power Co., 201 Ala. 555, 556, 78 So. 909, 910: "In other words, the injuries complained of were not capable of being ascertained at the time the dam [embankment here] was constructed or even so reasonably contemplated as to authorize payment or security therefor as provided by said section 235 at the time of the construction or enlargement of the ways, works" etc. It is easy to differentiate the case at bar from Tarrant City v. Pope, supra, where the improvement consisted of a large drainage ditch, in such proportions as to make it permanent, whereas here the defect applies only to a pipe across a street, which could be abated. One of the clearest statements of the rule is to be found in Hamilton v. Ala. Power Co., 195 Ala. 438, 70 So. 737, 741, where the present Chief Justice concludes that: "It is very plain to our view that the constitutional provision [section 235] was only intended to apply to such injuries as are capable of being ascertained at the time the works are being constructed or enlarged, for the reason, among others, that it requires payment to be made therefor, or security to be given, in advance."
From all of the authorities read we conclude that the facts set up in pleas 6 and 9 do not constitute res adjudicata as to the damages claimed in the complaint, and that the court erred to a reversal in so ruling.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.