" In Schumacher v. City of New York, 166 N.Y. 103, 59 N.E. 773, a trench for laying pipe in a street was dug under a permit from the city and the excavated dirt was thrown into the gutter, where it lay two days, damming the gutter and a culvert, of which the city had notice. A storm filled the gutter and the water ran into a basement on abutting premises, ruining the goods of plaintiff. It was held that the city, having notice, was liable.
While some of the cases cited by respondent seem to be at variance with our conclusions, the facts in each of them differ from those presented by the record before us in this case. For example, in Schumacher v. City of New York, 166 N.Y. 103, [ 59 N.E. 773],) it was held that the lower court erred in not permitting the evidence to go to the jury. The facts were that a trench had been dug two feet from the curb, that this excavation was several rods long, four or five feet wide, and more than eight feet deep; that the earth taken from the trench was so placed as to obstruct the gutter and a culvert; and that the trench "thus became a pocket for all the surface drainage of a large area."
We reach this conclusion without passing upon the point made by respondent, and which appears to be sustained by ample authority, that the city was not entitled to notice of obstructions at the outlet before it became liable for damages resulting therefrom; that it is the duty of a city to anticipate the probability of such occurrences, and to guard against them by occasional examinations and cleansings. (10 Am. Eng. Ency. of Law, 2d ed., p. 246; District of Columbia v. Gray, 6 App. D.C. 314, 319; Fort Wayne v. Coombs, 107 Ind. 75, [7 N.E. 743]; Schumacher v. City, 166 N.Y. 103, [ 59 N.E. 773].) The general rule on this subject is stated in the District ofColumbia v. Gray, 6 App. D.C. 314, 319, in which obstructions similar to those complained of in the case at bar were involved.
( Nims v. Mayor, etc., of City of Troy, 59 N.Y. 500; McCarthy v. City of Syracuse, 46 id. 194; Barton v. City of Syracuse, 36 id. 54; Ebbets v. City of New York, 111 App. Div. 364; Gravey v. City of New York, 117 id. 773.) A case directly in point, as it seems to me, is Schumacher v. City of New York ( 166 N.Y. 103). There, a trench was dug in the street pursuant to a permit issued under a statute which authorized a corporation to place pneumatic tubes of iron beneath the surface of public streets, and for that purpose to open any street or avenue upon obtaining the consent of the commissioner of public works.
The danger arose only from a leak in the gas main at that point, and the village had no notice that the gas main had been previously injured by careless handling or that there was any reasonable probability that a leak would develop at that point thereafter. It may be charged with notice of conditions which would have been apparent upon such inspection as it actually made or which it should have made in the performance of its duty to maintain the street in a reasonably safe condition ( Schumacher v. City of New York, 40 App. Div. 320; affd., 166 N.Y. 103), but here the village did not inspect the gas main to discover possible leaks, and was under no duty to make such inspection. It follows that the complaint against the village should have been dismissed.
to be anticipated, and a cloud-burst like that of June 9 came and overflowed the drain and thereby inundated plaintiff's premises, calling the resulting inundation a trespass or nuisance would not impose liability on the owner of the adjacent property. The care required of municipalities in the construction and maintenance of sewers is ordinary or reasonable care and diligence, and the municipality is not liable for injury caused by extraordinary occurrences which could not reasonably be anticipated. City of Boulder v. Fowler, 11 Colo. 396, 18 P. 337; Gelford v. City of Hartford, 85 Conn. 689, 84 A. 85; City of Savannah v. Spears, 66 Ga. 304; City of Fort Wayne v. Coombs, 107 Ind. 75, 7 N.E. 743, 57 Am. R. 82; Wendt v. Town of Akron, 161 Iowa, 338, 142 N.W. 1024; Brose v. City of Dubuque, 193 Iowa, 763, 187 N.W. 857; Hanrahan v. Baltimore City, 114 Md. 517, 80 A. 312; Merrifield v. City of Worcester, 110 Mass. 216, 14 Am. R. 592; Prime v. City of Yonkers, 192 N.Y. 105, 84. N.E. 571; Schumacher v. City of New York, 166 N.Y. 103, 59 N.E. 773; Brinkley Lassiter v. Norfolk Southern R. Co. 168 N.C. 428, 84 S.E. 700; Nashville v. Sutherland Co. 94 Tenn. 356, 29 S.W. 228; City of Richmond v. Cheatwood, 130 Va. 76, 107 S.E. 830; Biegel v. City of New Orleans, 143 La. 1077, 79 So. 867. The case of Netzer v. Crookston City, 59 Minn. 244, 61 N.W. 21, sufficiently points out that where the improvement is lawful and the flooding is caused by some careless act or omission in maintaining same, the municipality is required only to exercise ordinary care, and that the rule applies whether the action be considered as one for trespass or for negligence. The case of Tate v. City of St. Paul, 56 Minn. 527, 58 N.W. 158, 45 A.S.R. 501, is held not in conflict with that rule.
" To the same effect is Schumacher v. City of New York, 166 N.Y., 103, 59 N.E. 773, in which the court says: "Having provided gutters, culverts, and sewers for the surface drainage, it was bound to the use of reasonable diligence to discover and remedy defects therein.
The city had notice of the original excavation and it was made with its permission, and until restoration has been made complete its duty of inspection continues and it is entitled to no notice of its condition. ( Wilson v. City of Troy, 135 N.Y. 96; Parks v. City of New York, 111 App. Div. 836; affd., 187 N.Y. 555; Godfrey v. City of New York, 104 App. Div. 357; affd., 185 N.Y. 563; Stedman v. City of Rome, 88 Hun, 279; Schumacher v. City of New York, 166 N.Y. 103.) If I am in error in this proposition, I think the court erred in his instructions to the jury.
) the court, per RAPALLO, J., say (pp. 197 and 198): "The mere absence of this notice does not necessarily absolve the city from the charge of negligence. Its duty to keep its sewers in repair, is not performed, by waiting to be notified by citizens that they are out of repair, and repairing them only when the attention of the officials is called to the damage they have occasioned by having become dilapidated or obstructed; but it involves the exercise of a reasonable degree of watchfulness in ascertaining their condition, from time to time, and preventing them from becoming dilapidated or obstructed. Where the obstruction or dilapidation is an ordinary result of the use of the sewer, which ought to be anticipated and could be guarded against by occasional examination and cleansing, the omission to make such examinations and to keep the sewers clear, is a neglect of duty which renders the city liable. ( Barton v. The City of Syracuse, 37 Barbour, 292; affirmed, 36 N.Y. 54.)" See, too, Schumacher v. City of New York ( 166 N.Y. 103), where the court, per VANN, J., say (p. 107): "Having provided gutters, culverts and sewers for the surface drainage, it was bound to the use of reasonable diligence to discover and remedy defects therein. ( Barton v. City of Syracuse, 36 N.Y. 54; McCarthy v. City of Syracuse, 46 N.Y. 194; Hines v. City of Lockport, 50 N.Y. 236; Nims v. Mayor, etc., of Troy, 59 N.Y. 500; Mayor, etc., of N.Y. v. Furze, 3 Hill, 612.)
In all cases cited by claimant in his memorandum filed with the court, wherein the State or other public authority was held responsible to the owner, it seems that the State was either the actual perpetrator of the trespass or de facto appropriation, or knew that the contractor was appropriating or damaging the land of the claimant, and not only did nothing to stop it but seems to have actively condoned the wrong it knew was committed. ( Schumacher v. City of New York, 166 N.Y. 103; Keller v. State of New York, 19 Misc.2d 794; Rosenberg v. State of New York, 24 Misc.2d 960; Clough v. State of New York, 208 Misc. 499; Goldschmid v. Mayor, Aldermen Commonalty of City of N Y, 14 App. Div. 135.) The testimony discloses that, as in all cases of roadway contracts, here, too, the State draws the attention of the contractor to the availability, distance and content of borrow pits, and also, where required, the availability of area for dumping excess material which is expected to be dug on the contract job.