Warden v. City of South Pasadena

SHAW, J.

The defendant appeals from the judgment and from an order denying its motion for a new trial.

The cause of action sued on arose, originally, in favor of Mrs. T. P. Jackson. The complaint alleges that it was assigned by Mrs. Jackson to the plaintiffs. The evidence shows that it was assigned to the plaintiff, Julia P. Warden, and neither the complaint, the findings, nor the evidence show that the two plaintiffs sustained the relation of husband and wife, nor that the cause of action was the separate property of Julia P. Warden. No objection is made on this account by the defendant, and, therefore, for purposes of this decision, we will assume that if the plaintiffs are husband and wife, the subject of this litigation became the separate property of Julia P. Warden and that C. D. Warden is a nominal party only.

The complaint alleges that Mrs. Jackson was the owner of a lot in the city of South Pasadena, situated at the southwest corner of Foothill Street and Fair Oaks Avenue, on which she had erected a dwelling-house in which she resided; that prior to her purchase of the lot the city constructed and placed a drain pipe across Foothill Street, in front of said lot, and across the said lot; that said drain pipe was defectively constructed and that, during a heavy rain storm, the drain pipe broke where it crossed Foothill Street and thereby the said lot and residence were flooded with the water from the drain pipe and greatly damaged.

The answer admitted that the city had constructed and placed a drain pipe across Foothill Street, but denied that it had constructed or placed any pipe across the said lot, or that the drain pipe across Foothill Street broke, or that it was defectively constructed.

The evidence showed that before Mrs. Jackson acquired the lot, one Hardison owned the land on both sides of Foothill Street, including this and other lots; that a gully or depression some eight or ten feet deep, formed by storm water,, extended through this land and the lot in question, crossing said street at the place where the drain pipe was afterwards placed; that the city at one time placed a wooden box or culvert across the street to carry the water of the gully under

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the street, and that during Hardison’s ownership the city, being about to grade and improve the street, took out the wooden culvert and laid in its place a sixteen-inch vitrified iron drain pipe, composed of joints two and a half feet long, being the pipe in question. This pipe was put there solely for the purpose of carrying under the street the water naturally flowing in the gully. It was well laid, properly connected and of sufficient size to carry the water and withstand all pressure that would be put upon it from storm waters flowing therein under the natural conditions existing at the time it was laid. After laying this pipe the street was by the city graded and filled in across the depression so that its surface was ten feet above the pipe. After this was done, Hardison, the owner, began the improvement of his land. He put in a twelve-inch drain pipe in the gully above Foothill Street for a distance of over four hundred feet, connecting it at the street with the upper end of the sixteen-inch pipe. Below the street the gully ran through the lot after-wards sold to Mrs. Jackson. In this part of the gully Hardison also laid a twelve-inch pipe extending from the street line into the lot beyond the place where the house was after-wards erected. This pipe he connected with the lower end of the sixteen-inch pipe, at the street line, by inserting the twelve-inch pipe into the sixteen-inch pipe and cementing around the connection. He did this without the consent of the city and over the protest of its street superintendent, who also, at the time, warned him that he should not connect a twelve-inch pipe with a sixteen-inch pipe. The city.had no connection whatever with the laying of the pipe in the land of Hardison. Hardison used inferior pipe. Some of it was broken and he patched it with other pieces of pipe and cement. After laying this drain pipe in his land, Hardison filled in the gully to a level with the surface of the street, covering the pipe and leveling his ground so as to make it suitable for building lots, and thereupon he sold the lot in question to Mrs. Jackson.