Rice v. City of Evansville.

attributes his injury, he cannot recover solely upon the ground that the sewers were of insufficient capacity. A municipal corporation is responsible for negligence in devising the plan of a sewer, as well as for negligence in carrying the plan into execution, but it is not responsible for mere errors of judgment. If the inadequacy in the size of a sewer is owing to the omission to exercise ordinary skill and care in planning and performing the work, the municipal corporation is liable, but if the inadequacy of the sewer is attributable to a mere error of judgment, there is no liability. City of North Vernon v. Voegler, 103 Ind. 314; City of Crawfordsville, v. Bond, 96 Ind. 236; City of Evansville v. Decker, 84 Ind. 325; s. c., 43 Am. Rep. 86; Cummins v. City of Seymour, 79 Ind. 491; s. c., 41 Am. Rep. 618; Weis v. City of Madison, 75 Ind. 241; s. c., 39 Am. Rep. 135; City of Indianapolis v. Huffer, 30 Ind. 235.

The controlling question in cases where the municipal corporation is sought to be made liable for injuries from overflows is: Was there negligence on the part of the municipal corporation in devising the plan of the sewer or in carrying it into execution? For if there was no negligence there is no liability, although an error of judgment may have caused the corporate authorities to provide a plan for a sewer of inadequate capacity. There may possibly be cases where the court could say, as a matter of law, that the inadequacy of the sewer was such as in itself to constitute negligence, but however this may be, it is very clear that with the general verdict and the special answer of the jury against the appellant, the court cannot declare that the city was guilty of negligence in this instance.

It is contended that the facts found by the jury show that the city wrongfully obstructed a natural water-course by constructing a culvert of insufficient size, and that where a natural water-course is obstructed the corporation is liable for resulting injuries, although it may not have been guilty of negligence. Upon the strength of this argument the appellant claims that he is entitled to a judgment on the special finding, but we cannot uphold this claim, for if it were granted that there was a natural water-course, and that a culvert was constructed of insufficient size, still there can be no recovery, because all the facts essential to a recovery are not found, and because the answers are not absolutely irreconcilable with the general verdict. It is found that there was no negligence, and that the culvert is of less capacity than the water-course was, but how

Rice v. City of Evansville.

much less is not found. The record thus exhibits the finding: Question: "How much less capacity has the sewer than the water-course?" Answer: "Don't know; there was no evidence on that point." In the face of the general verdict, and in view of the fact that the burden of proof was on the appellant, it cannot be asserted that his case is made out, for it may well be that the capacity of the sewer was so little different from that of the natural water-course as not to perceptibly obstruct the flow of water. As against the general verdict, it cannot be presumed that there was a material obstruction of the water-course. Nor does it appear from the answers that the culvert caused the overflows; for any thing that appears, the overflows may have occurred more often before than after the construction of the culvert. Nor does it appear that the incapacity of the culvert was the proximate cause of the overflow of appellant's property, and it is well settled that it must appear that the wrong of the defendant was the proximate cause of the injury which is alleged as the cause of action. Cincinnati, etc., R. Co. v. Hiltzhauer, 99 Ind. 486.

[Minor matter omitted.]

It has long been the law of this State, that for consequential injuries resulting from the grading of streets in a careful and skillful manner, the municipal corporation is not liable. Macy v. City of Indianapolis, 17 Ind. 267; Weis v. City of Madison, supra; City of Kokomo v. Mahan, 100 Ind. 242, and cases cited, p. 244.

So far then as any injury resulted from the grading of the streets, no claim can be successfully urged against the city, although it may have greatly increased the flow of surface water along the property of the appellant.

While it is the law that a city is not responsible for consequential injuries resulting from the careful and skillful grading of its streets, still it is liable if it undertakes to collect the water in one channel, and is negligent in devising the plan, performing the work, or providing an outlet where one is made necessary by its own act. A municipal corporation is not however bound to undertake the work of providing sewerage or drainage, but if it does enter upon the work, it is liable for negligence in devising the plan and in doing the work. Weis v. City of Madison, supra, and cases cited; City of Logansport v. Wright, 25 Ind. 512.

In this case there is evidence supporting the appellant's theory that there was negligence in devising the plan of the sewer as well

Rice v. City of Evansville.

as in doing the work, but there is also evidence to the contrary, and we must accept that as credible on which the jury acted. Binford v. Adams, 104 Ind. 41; Union School Tp. v. First Nat'l Bank, 102 Ind. 464; Gathright v. Burke, 101 Ind. 590; Julian v. Western Union Tel. Co., 98 Ind. 327; Cain v. Goda, 94 Ind. 555; Arnold v. Wilt, 86 Ind. 367.

Accepting as trustworthy the evidence which influenced the jury, we must hold that there was no negligence.

We cannot agree with counsel that the evidence shows without conflict that the city wrongfully collected the water in one channel and poured it upon the appellant's property, for on this point there is a material conflict. We agree with counsel as to the legal proposition that a city is liable if it undertakes to collect in one channel, and wrongfully pours it upon another's land. Lipes v. Hand, 104 Ind. 503; City of Evansville v. Decker, 84 Ind. 325; s. c., 43 Am. Rep. 86; Weis v. City of Madison, supra; Cairo, etc., Co. v. Stephens, 73 Ind. 278, 283; s. c., 38 Am. Rep. 139; Templeton v. Voshloe, 72 Ind. 134; s. c., 37 Am. Rep. 150, and cases cited.

While we agree with counsel as to the legal proposition, we think the case is not within the rule, for the reason that the evidence fairly shows that the city attempted to convey the water past the property of the appellant, but was not guilty of negligence, although the officers of the city may have erred in judgment as to the size of the sewer or culvert. In this state of the evidence we must respect the verdict of the jury upon this point.

We cannot concur in counsel's view that the evidence shows without conflict that the city undertook to build a culvert across a natural water-course. We need not decide whether there is, or is not, an absolute liability irrespective of the question of negligence, in cases where a municipal corporation undertakes to build a sewer, and it is therefore unnecessary for us to comment upon the cases of Perry v. City of Worcester, 6 Gray, 554; s. c., 66 Am. Dec. 431; Earl v. De Hart, 1 Beasley, 280; s. c., 72 Am. Dec. 395; Palmer v. Waddell, 22 Kans. 352, and other like cases referred to by the appellant. There is some evidence tending to prove that there was a natural water course, but there is evidence to the contrary, and we cannot attempt to reconcile the conflict.

Ravines through which surface water occasionally flows are not natural water-courses within the meaning of the law. "To constitute a natural water-course, there must be a bed and banks and eviVOL. LVIII - 4

dences of a permanent stream of running water." Weis v. City of Madison, supra; Hoyt v. City of Hudson, 27 Wis. 656; s. C., 9 Am. Rep. 473; Howard v. Ingersoll, 13 How. 381, 427.

We do not think the evidence in this case so clearly shows that there was a natural water-course as to make it on the evidence.

our duty to reverse Judgment affirmed.

WATSON V. Penn.

(108 Ind. 21.)

Will-life-estate in leased land—death of life-tenant during term — title to

rents.

A devisee for life of land subject to a lease made by the testator, dying during the term, before any rent accrues, the rent goes to the reversioner, and is not carried by a bequest of all the testator's personalty, including notes and accounts.

A

CTION against an executor for rent collected. The opinion states the case. The plaintiff had judgment below.

T. H. Ristine and H. H. Ristine, for appellant.

A. D. Thomas, for appellee.

MITCHELL, J. John F. Penn, as guardian of Margaret Penn, brought this suit to recover from William W. Watson certain rent money collected by the latter as executor of the last will of James G. Watson, deceased, which the guardian claimed on behalf of his ward.

The questions involved arise on the pleadings, which present the following facts: James G. Watson died on the 17th day of September, 1882, testate. Prior to his death the testator leased 160 acres of land, owned by him, to one Hunt for the term of one year, to commence March 1, 1883, the rental agreed upon being $275. It does not appear that the time for the payment of rent was agreed upon, or that there was such a usage in that respect as would make it fall due otherwise than as the law would imply.

By his will the testator devised the land leased to his widow, Ann E. Watson, for her life, with remainder over to his granddaughter, Margaret Penn, the appellee's ward.

Watson v. Penn.

Another clause of the will gave the widow, Ann E. Watson, all the personal property, including all notes and accounts owned by and owing to the testator at the time of his death.

Ann E. Watson, the testator's widow, died intestate, June 19, 1883, without having received any part of the rent in question. The appellant, as executor of the last will of James G. Watson, received the rent, and refused to pay it over to the guardian of Margaret Penn, claiming that under the will it properly belonged to the estate of Ann E. Watson, deceased.

Upon the facts stated, the court below was of the opinion that the appellee was entitled to recover the whole amount received by the appellant for rent. Judgment was given accordingly. only inquiry here is as to the propriety of this holding.

The

Mrs. Watson having taken her life-estate subject to an existing lease, which was made in the life-time of the testator, and having died during the term of the lessee, before any rent became due, the first question is, was any or all of the rent for the term payable to her personal representative?

It is a settled rule of law, which the appellant does not question, that rents of real estate, which have accrued and become payable before the death of an intestate, go to the personal representative, while those which mature and fall due afterward go to the heir. King v. Anderson, 20 Ind. 385; Evans v. Hardy, 76 Ind. 527; McDowell v. Hendrix, 67 Ind. 513; Dorsett v. Gray, 98 Ind. 273. Rents that have accrued are rents which are due.

By the common law, the right to receive accruing rent, which would have been payable to a life-tenant, who took his estate subject to a prior lease for a term, passes to the reversioner in case of the death of such tenant before rent day. In such a case, whereever the reversion goes, whether to the original lessor, or his grantees or descendants, the accruing rent, from the rent day next antecedent to the death of the life-tenant, follows without apportionment. If the estate of the life-tenant terminates intermediate rent days, or before any rent has become due, the accruing rent becomes an incident of, and is annexed to the estate of the reversioner. Whoever owns the reversion when the rent falls due is entitled to receive the whole sum, unless it is otherwise provided by contract. Tayl. Landl. & Ten., §§ 154-156; Marshall v. Moseley, 21 N. Y. 280; Perry v. Aldrich, 13 N. H. 343; s. c., 38 Am. Dec. 493; Wilcoxon v. Donnelly, 90 N. C. 245; Porter v. Sweeney,