Johnston v. District of Columbia

This was an action against the District of Columbia by a citizen and taxpayer in Washington to recover damages caused to his house and land fronting on Missouri avenue, in the summer of 1877, by the overflow of foul water from a sewer in that avenue, which the declaration alleged that the defendant knowingly constructed and continued upon an unreasonable and defective plan, and of inadequate capacity for its purpose, and wrongfully permitted to become choked up. The defendant denied its liability. The plaintiff's bill of exceptions stated that he testified that at the time alleged his house and land were overflowed and injured by foul water from this sewer; that he noticed that the water in the avenue was very deep; and that he never saw or knew of any flooding or overflow of the avenue or of his property until the sewer was constructed. The rest of the bill of exceptions was as follows: 'And to sustain further the issues joined, the plaintiff put upon the stand, as his witness, Benjamin Severson, a citizen of Washington, and an engineer by profession, who testified to the Tiber sewer being two feet lower at its base than the Missouri-avenue sewer where they meet each other; and being asked by the counsel for the plaintiff what, in his opinion, the consequence would be in case of a freshet or great fall of rain, the question was objected to by the counsel of the defendant unless the counsel for the plaintiff stated his object in asking such question; and thereupon it appeared that it was asked with the view of showing by that witness that the plan on which the sewer had been constructed by the authorities of the District had not been judiciously selected; and thereupon the testimony was objected to, and the court, after argument, sustained the objection, to which ruling the plaintiff's counsel excepted.' The jury returned a verdict for the defendant, the exceptions were overruled by the court in general term, and the plaintiff sued out this writ of error.

Frank T. Browning, for plaintiff in error.

A. G. Riddle and H. E. Davis, for defendant in error.

Mr. Justice GRAY, after stating the case as above reported, delivered the opinion of the court.