Johnston v. District of Columbia/Opinion of the Court

The duties of the municipal authorities in adopting a general plan of drainage, and determining when and where sewers shall be built, of what size and at what level, are of a quasi judicial nature, involving the exercise of deliberate judgment and large discretion, and depending upon considerations affecting the public health and general convenience throughout an extensive territory; and the exercise of such judgment and discretion in the selection and adoption of the general plan or system of drainage is not subject to revision by a court or jury in a private action for not sufficiently draining a particular lot of land. But the construction and repair of sewers, according to the general plan so adopted, are simply ministerial duties; and for any negligence in so constructing a sewer, or keeping it in repair, the municipality which has constructed and owns the sewer may be sued by a person whose property is thereby injured. The principal decisions upon the subject are collected in the briefs of counsel, and generally, if not uniformly, support these propositions. The leading authorities are the judgments of the supreme judicial court of Massachusetts, delivered by Mr. Justice HOAR, in Child v. Boston, 4 Allen, 41, 51-53, and of the court of appeals of New York, delivered by Chief Justice DENIO, in Mills v. Brooklyn, 32 N. Y. 489, 495-500.

In Barnes v. District of Columbia, 91 U.S. 540, 556, it was said that in Rochester White Lead Co. v. Rochester, 3 N. Y. 463, 'the city was held liable because it constructed a sewer which was not of sufficient capacity to carry off the water draining into it. The work was well done, but the adoption and carrying out of the plan was held to be an act of negligence.' But this was clearly a mistake; for in the Rochester Case the fact was distinctly found that the insufficiency of the culvert to carry off the water was owing, not merely to the smallness of its size, but to 'the want of skill in its construction,' (3 N. Y. 465;) and the case was distinguished on that ground in Mills v. Brooklyn, 32 N. Y. 499. The question in judgment in Barnes v. District of Columbia, as well as in Weightman v. Washington, 1 Black, 39, was of municipal liability, not for an injury to property by a sewer, but for a personal injury to a traveler by a want of repair in the highway, a question not now before us. In Barton v. Syracuse, 36 N. Y. 54, also cited for the plaintiff, the ground of action was not the plan of constructing the sewer, but the neglect to keep it in repair.

In the present case, the only evidence offered by the plaintiff, which was excluded by the court, was evidence of what, in the case of a freshet, or of a great fall of rain, would be the consequence of the difference in level between the sewer in question and another sewer connecting with it; and this evidence, as the plaintiff's counsel avowed, was offered 'with the view of showing that the plan on which the sewer had been constructed by the authorities of the District had not been judiciously selected.' The evidence excluded was clearly inadmissible for the only purpose for which it was offered. As showing that the plan of drainage was injudicious and insufficient, it was incompetent. As bearing upon the question whether there was any negligence in the actual construction or repair of the sewer, or the question whether the sewer was so constructed as to create a nuisance upon the plaintiff's property, it was immaterial. The instructions given to the jury are not reported, and must be presumed to have been accurate and sufficient. Judgment affirmed.