FLOOD03849 - Laserfiche WebLink

Home Browse Search

. . . . In addition to negligence, other legal theories have been used to impose liability on municipalities ~or faulty construction and main- tenance of drainage improvements. Thus, a municipality may incur liability for trespass, Barberton v. Miksch, 128 Ohio St. 169, 190 N.E. 387 (1934) (casting water upon the land of another by seepage or percolation resulting from the construction and maintenance of a reservoir was a trespass by municipality); an unconstitutional taking, Mosley v. City of Lorain, 43 Ohio St. 2d 334, 358 N.E. 2d 596 (1976), (city had effectively appropriated the plaintiff's pro- perty by constructing a storm sewer system which channelled a greater volume of water into the creek than the creek could reasonably be expected to handle without flooding); Lucas v. Carney, 167 Ohio St. 416, 149 N.E. 2d (1958) (construction of a public improvement on county property, which greatly ic~reased the amount and force of surface water which flowed onto the plaintiff's property overflowing and inundating it, raised a claim of pro tanto appropriation); or nuisance, Mansfield v. Bolleet, 65 Ohio St. 451, 63 N.E. 86 (1902) (municipality is liable if it causes drainage to be emptied into a natural watercourse a~d substantially damages a lower landowner). Even in the absence of negligence, nuisance, trespass or taking, the evolving doctrine of inverse condemnation is being used to permit landowners to obtain compensation from a municipality where storm runoff from municipal projects are diverted across another's la~d on the theory that the city has taken a drainage easement.. Thus, like an easement for noise emanating from the municipal airport, physical entry by the governmental entity or statutory allowance of compensatory damages is not required in order for landowners to recover. ( ( In several Colorado cases, however, municipalities have not incurred liability for faulty construction where they are found to be upper proprietors with a natural easement for drainage - even when water is sent down in a manner or quantity to do more harm than formerly. City of Englewood v. Linkenheil, 362, P.2d 186 (1961) (city's action in channelin~ water by system of drains, catch basins, intakes, and pipes, from higher place to place contiguous to land of plaintiff, which was a natural drainage area, so as to over- \ flow onto the land of plaint~ff did not constitute a taking of pro- perty without just compensation); City and County of Denver v. Stanley Aviation Corporation, 143 Colo. 182, 352 P.2d 291(1960) (plaintiff could not recover from city for damage caused by flood waters which backed onto lower land on theory that city had bee~ negligent or failed to use due care in installing a pipe adequate to carry the waters); Aicher v. Denver, 10 Colo. App. 413, 52 P. 86 (1897) (city not liable for damage where street grade was changed, trolley tracks permitted in street, a culvert built too small, but landowner declared to be in the unfortunate position of having built below the grade of the street). . ( i -15-80 (4)