Andrus v. City of Ashland

Wisconsin Supreme Court
Andrus v. City of Ashland, 169 Wis. 362 (Wis. 1919)
172 N.W. 721; 1919 Wisc. LEXIS 164
Rosenberry

Andrus v. City of Ashland

Opinion of the Court

Rosenberry, J.

Plaintiff claims to have been damaged in two ways:

(1) That by reason of the grading of the streets more water was discharged into the ravine than wduld have come to it in a state of nature, and because the waters so collected were discharged upon him in unusual quantities with added force.

Upon that branch of the case we think the decision of the trial court is clearly right. We shall not attempt to restate the facts, as it would serve no useful purpose in this or in any other, case.

(2) Plaintiff further claims that the defendant is liable by reason of the insufficiency of the outlet of the box sewer at the point where it is connected with the twenty-four inch pipe through the premises of Berg. The box sewer was no part of the sanitary sewer system of the defendant city. Therefore no question of the adequacy of the plan is before us. We do not find it necessary in this case to determine whether or not the city is liable for the insufficiency of the outlet to the box sewer. The court in directing the verdict said:

“Most of. the damage, certainly, if not all, was caused by the surface water flowing naturally in the direction of plaintiff’s premises, where it always had, the only difference, apparently, being that this was an unusual, if not extraordinary, rainstorm, or freshet, and for which no legal liability attached to the city.”

The evidence as to the character of the storm is practically uncontradicted and in our opinion conclusively 'establishes the fact that the storm in question was at least extraordinary. Rainfalls are divided into three classes: ordinary, *366extraordinary, and unprecedented. The city is not liable for damages resulting from an extraordinary rainfall. Geuder, Paeschke & Frey Co. v. Milwaukee, 147 Wis. 491, 133 N. W. 835. The conclusion of the trial court that the damage in this case was the result of such a rainfall is amply sustained by the evidence and the case presents no jury question. The question as to whether the outlet of the sewer is sufficient to discharge surface water accumulating from an ordinary rainfall is not presented by this record. Upon the case presented the trial court was clearly right.

By the Court. — Judgment affirmed.

Reference

Cited By
1 case
Status
Published