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1933 OK 250
21 P.2d 498
163 Okla. 149
Case Number: 21534
Decided: 04/25/1933
Supreme Court of Oklahoma



¶0 1. Municipal Corporations--Diversion of Surface Water by Grading and Paving--Liability of City for Injury to Abutting Premises.
If a city so grades and paves its streets as to divert surface water from its usual and ordinary course, and by its grading and paving causes such water to be conveyed to a particular place and to overflow the land of another proprietor which, before the grading and paving of such streets, did not overflow, the city will be liable to such proprietor for the injury.
2. Same--Injury not Permanent Where Caused by Use of Pavement for Storm Sewer Purposes.
Such an injury is not permanent where it is caused by the use of the paved streets for storm sewer purposes, since it may be easily and successfully prevented.
3. Negligence--Recovery Against Any One of Parties Responsible.
Where, although concert is lacking, the separate and independent acts or negligence of several combine to produce directly a single injury, each is responsible for the entire result, even though his act or neglect alone might not have caused it.

Appeal from District Court, Tulsa County; Edwin R. McNeill, Judge.

Action by Katie B. Carroll against the City of Skiatook. Judgment for plaintiff, and defendant appeals. Affirmed.

L. H. Taylor, for plaintiff in error.
Harry L. S. Halley and W. B. Richards, for defendant in error.


¶1 This is an appeal from a judgment of the district court of Tulsa county by the defendant in an action in which the plaintiff recovered a money judgment for damage to real estate, which was caused by the diversion of water from its natural flow, causing it to flow upon the land of the plaintiff in an unnatural manner, to the damage of the plaintiff.

¶2 Prior to the construction of the pavement by the city, such water flowed over a natural course into a ravine. By the construction of the pavement, it was diverted from that course and was caused to flow in a different volume and over a different course.

¶3 The plaintiff in error contends that the injury was permanent, and that by reason thereof such action was barred by the applicable provisions of the statutes of limitation. It relies on the decision of this court in City of Mangum v. Sun Set Field, 73 Okla. 11, 174 P. 501, and Consumers' Light & Power Co. v. Holland, 118 Okla. 132, 247 P. 50. Those decisions are not controlling. See Oklahoma City v. West, 155 Okla. 63, 7 P.2d 888, and Oklahoma City v. Page, 153 Okla. 285, 6 P.2d 1033.

¶4 This court has persistently followed the common-law rule that it is unlawful to divert surface water from its usual and ordinary course, to collect it in volume, and to convey it by artificial means onto the property of a private individual. Town of Norman v. Ince, 8 Okla. 412, 58 P. 632; Chicago, R. I. & P. Ry. Co. v. Johnson, 25 Okla. 760, 107 P. 662; City of Ardmore v. Orr, 35 Okla. 305, 129 P. 867, and City of Chickasha v. Looney, 36 Okla. 155, 128 P. 136.

¶5 When a cause of injury can be abated, either by a reasonable expenditure of labor or money, it will not be held to be permanent, and the owner is entitled to recover such damages as have been sustained by actual injury or loss of use of the property up to the time of the commencement of the action, and successive actions may be brought by the landowner for any damages occurring thereafter, if such cause of injury be not abated. City of Ardmore v. Orr, supra, citing Uline v. N. Y. Cent. & H. R. Co., 101 N.Y. 98, 4 N.E. 536, 54 Am. Rep. 661, and Sloss-Sheffield Steel & Iron Co. v. Mitchell, 161 Ala. 278, 49 So. 851. In Pahlka v. Chicago, R. I. & P. Ry. Co., 62 Okla. 223, 161 P. 544, this court, discussing the question here considered, said:

¶6 We find no error in the refusal to give the instruction requested. There are a number of reasons why the instruction should not have been given, among which is the rule as to concurrent causes. That rule is stated in 45 Corpus Juris, section 476, as follows:

"If the concurrent negligence of two or more persons combined together results in an injury to a third person, they are jointly and severally liable and the injured person may recover from either or all; the concurring negligence of one is no excuse or defense to another; each is liable for the whole, even though another was equally culpable, or contributed in a greater degree to the injury; no consideration is to be given to the comparative degree of negligence or culpability, or the degree of care owing; and further inquiry as to proximate cause is not pertinent. * * *"

¶7 The Oklahoma decisions cited thereunder are as follows: Avery v. Wallace, 98 Okla. 155, 224 P. 515; Jueschke v. Seeley, 98 Okla. 133, 224 P. 341; Selby Oil, etc., Co. v. Rogers, 94 Okla. 269, 221 P. 1012; Walters v. Prairie Oil, etc., Co., 85 Okla. 77, 204 P. 906, and Northup v. Eakes, 72 Okla. 66, 178 P. 266. In Pratt v. Chicago, etc., R. Co. (Iowa) 77 N.W. 1064, it was stated as follows:

"The rule of law is well settled that the mere fact that some other cause operates with the negligence of defendant to produce the injury does not absolve defendant from liability. His original wrong, concurring with some other cause, and both operating proximately at the same time in producing the injury, makes him liable, whether the other cause was one for which defendant was responsible or not."

¶8 The plaintiff in error complains as to the amount of the damages fixed by the verdict of the jury, and contends that it was the duty of the plaintiff to protect her property against injury. It cites no authority in support of that complaint or of that contention. We know of no rule of law which requires a property owner to build a dike in front of his house to keep water off his premises that has been diverted from its natural course and turned onto the property by the action of a city. If the city desired to change the course of the flow of the water, it should have protected the property of the plaintiff from injury, and it will not be heard to say that it is not liable to the plaintiff for the damage sustained by her because she did not build a dike to keep the water off her property.

¶9 We have carefully read the record, and we find nothing therein from which we can conclude that the verdict of the jury was excessive.

¶10 Under the rule stated in Brown v. McNair, 125 Okla. 144, 256 P. 903, this court will not modify a judgment in an action for damages, where it is sustained by sufficient evidence, on the ground that it is excessive, unless it appears either to have been rendered through passion or prejudice.

¶11 We find no error in the judgment of the trial court, and that judgment is in all things affirmed.

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