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09/09/94 CITY DOTHAN v. TERESA SEGO

September 9, 1994

CITY OF DOTHAN
v.
TERESA SEGO, ET AL.



Appeal from Houston Circuit Court. (CV-92-521). S. Edward Jackson, Trial Judge.

Released for Publication December 7, 1994. As Corrected April 14, 1995.

Hornsby, C. J., and Maddox, Almon, Shores, Houston, Ingram, and Cook, JJ., concur.

The opinion of the court was delivered by: Per Curiam

PER CURIAM.

The City of Dothan appeals from a judgment entered on a jury verdict in favor of Teresa Sego and Rickey L. Sego, wife and husband, awarding them $17,000 for property damage and $33,000 for mental anguish. The Segos brought this action against the City, alleging that the City had negligently maintained a drainage ditch adjoining their property and that the City's negligence had caused the property to be flooded. The principal issue is whether the circuit court erred in overruling a motion for new trial where the verdict was based on a finding that the City had undertaken a duty to maintain the ditch.

The City moved for a directed verdict on all counts of the complaint. The circuit court entered a directed verdict for the City on other counts not at issue here, but denied the motion for a directed verdict on the count alleging negligent maintenance of the ditch. The City filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial.

The Segos, until September 1992, lived at 109 Massee Drive. Teresa's father lived at 107 Massee Drive, which is within the Dothan city limits, until his death on September 27, 1991. The property at 107 Massee Drive was flooded on several occasions, including instances in 1978, in 1983, in "the summer of 1990," in January 1991, and on August 4, 1991. Teresa, as the executrix of her father's estate, filed this action on July 20, 1992. After she and her husband bought the property from the other heirs, the complaint was amended to add Teresa individually and her husband as plaintiffs.

Flooding occurred at the house at 107 Massee Drive because water from a drainage ditch on property owned by Jerry Creel overflowed onto the 107 Massee property during heavy rains. Teresa testified that when the ditch overflowed, she or her father would telephone the City and a crew of city employees would come to clean the ditch. Teresa testified that she was living at 107 Massee in 1978, and that the ditch overflowed on one occasion when her parents were out of town. On that occasion, according to her testimony, she telephoned the City and city employees came and cleaned the ditch. In 1983, when the ditch overflowed and water came into the house at 107 Massee, Teresa's father telephoned the mayor of Dothan and city employees came and cleared the ditch. Teresa also testified that they later sprayed weed killer in the ditch. Teresa and Rickey testified that in the summer of 1990 the ditch overflowed and the City was called, whereupon city employees once again cleared the ditch and sprayed weedkiller. In January 1991, there was fencing material discarded in the ditch, and the city employees instructed Jerry Creel to remove it.

Allan Kramer, a city engineer who did subdivision inspection and storm drainage and sanitary sewer work, testified that the water that flooded onto 107 Massee was not "City water" and therefore was not a city problem. He testified that the ditch was not a part of the city drainage system, and in fact, drained only private property. Kramer testified that the City did not have an easement on the Creel property. He also testified that when he inspected the ditch in January 1991 it was filled with weeds, debris, and old fencing material, and that, if that material had been cleaned out, the ditch probably would have carried the water off.

The City has, since the filing of this action, alleviated the flooding problem by widening and deepening the ditch between the two properties. There had been no further flooding at the time of trial, and the Segos testified that the flooding problem no longer existed. The City did not object to the admission of this evidence, although it arguably was evidence of subsequent remedial measures taken by a defendant, which is ordinarily inadmissible. See Phar-Mor, Inc. v. Goff, 594 So. 2d 1213, 1216 (Ala. 1992).

The City first argues that it owed no duty to maintain the ditch. Ala. Code 1975, § 11-50-50, provides:

"All cities and towns may make all needful provisions for the drainage of such city or town, may construct and maintain efficient sanitary and stormwater sewers or sewer systems, either within or without the corporate limits of the city or town, may construct and maintain ditches, surface drains, aqueducts and canals and may build and construct underground sewers through private or public property, either within or without the corporate limits of such city or town, but just compensation must first be made for the private property taken, injured or destroyed."

We find this case indistinguishable from Hendrix v. Creel, 292 Ala. 541, 297 So. 2d 364 (1974), and Hursey v. City of Mobile, 406 So. 2d 397 (Ala. 1981). In Hendrix, the City of Dothan had maintained a drainage ditch across Marion J. Creel's property for more than 20 years. Creel changed the direction of the ditch, causing flooding to the property of Hendrix and others, who brought an action against Creel and the City. The Court held first that the City had not acquired an easement by prescription, because the City's use was permissive. The plaintiffs also argued that, because it had maintained and cleared the ditch for more than 20 years,

"the City owed a duty to the [plaintiffs] and other members of the public to provide and maintain proper drainage for those involved who reside within the ...


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