Hession v. Mayor & Council

Citations

• 15 Del. 122

Syllabus

<p>Municipal Corporation. Negligence.—A municipal corporation is liable for damages resulting from an obstruction in a public sewer caused by sand, filth, and refuse negligently permitted by the city to be and remain in the streets to such an extent that the water cannot vent, but is dammed up, and forced back upon the premises of a private individual.</p> <p>Municipal Corporation.—If by reason of an extraordinary fall of rain water which the sewers, even if clear, could not have vented the damage would have resulted just the same the city would not be liable.</p> <p>Same. Quasi Judicial Powers.—Where a municipal corporation has full and exclusive power to determine the plans of sewers within its limits, and also to carry those plans into execution, the making of the plans both of construction and repair or enlargement is a quasi judicial or discretionary power or duty, and for any fault or defect in the bona fide exercise of such power and duty there is no liability.</p> <p>Same.-—The determination of the time and plans, for altering and enlarging sewers already built, even when known to the City to be inadequate, is as much within the discretion of the department, as the plans, time, and place for the original building of sewers; and no action lies for the failure of the City to remedy such inadequacy even after notice thereof, where the city has acted in good faith and not wilfully and wantonly in such failure to remedy the defect.</p> <p>Same. Ministerial Duties. Negligence.—The execution of the plans in the actual construction, repair and cleansing of sewers is a ministerial duty, for any fault or negligence in the performance of which the city is liable.</p> <p>Evidence.—Where the question is whether the overflow of a sewer was caused by an extraordinary rainfall, the testimony of an engineer as to the necessary capacity of a sewer in that locality for ordinary occasions is admissible.</p> <p>Witnesses. Practice.—More than six witnesses may be allowed to prove