from his estate, which application was duly granted. At the time the sewer was constructed it had sufficient capacity to receive and carry away, and did receive and carry away, without injury to the plaintiff, all the sewage and drainage from said Manton avenue and the land adjacent thereto, including the drainage from the plaintiff's estate. Subsequently to the time when plaintiff connected his premises with said sewer, to wit, in 1895, the city changed the grade of said Manton avenue and of several other streets connected therewith, whereby the surface water which had formerly flowed in another direction in said streets was turned into said avenue and into the said sewer, which, not having been designed or constructed by said city to receive and discharge the surface water of said additional streets and the territory adjacent thereto, and being of insufficient capacity for this purpose, became congested and overflowed upon the plaintiff's premises, causing him to be damaged. The plaintiff alleges that the conduct of the defendant, in thus turning said additional surface water into the sewer, 05 was wrongful and negligent, and that he is entitled to recover the damages which he has sustained by reason thereof.

The defendant demurs to the declaration, setting up that said sewer is a part of the sewer system of the city; that it is not required to construct said sewer of such size and dimensions as would carry off all the surface water, sewage, and drainage which from time to time after such construction was or might be turned therein as a part of said system; that it had the right to turn the surface water from said streets into said sewer; that the defendant is not liable for any defect or want of efficiency in the plan of drainage and sewerage adopted by it, and also that the defendant is not liable because the plaintiff had no right to connect his premises with said sewer, under the statute, except upon executing to said city a release of all damages which might at any time happen to such estate in any way resulting from said connection.

In support of the demurrer the defendant's counsel argue: 1. That the only substantive fact upon which the alleged negligence is based is that said sewer was not of sufficient capacity to carry off the surface water turned into it by a change of the grade of certain streets, in addition to the amount of water which had theretofore been turned into it; and 2. That there is no substantive difference between the statements of fact in said declaration and those in Baxter v. Tripp, 12 R. I. 310. We think the last-named contention is untenable. The facts in

Baxter v. Tripp, 12 R. I. 310, were materially different from those in the case before us. In that case the declaration alleged that the city wrongfully and negligently constructed a sewer in Lippitt street, and wrongfully and negligently used and maintained the same, whereby the plaintiff's estate was flooded and damaged. It was neither alleged nor claimed in that case that after the sewer was built a large amount or any amount of surface water, in addition to that originally intended to be taken care of by the sewer, was turned into it by changing the grade of the streets in the vicinity, or otherwise. And the court held that, under the agreement signed by the plaintiff at the time he applied 96 for permission to connect his premises with the sewer, said agreement being similar to the one here set up by the defendant in its plea in bar, which we will consider later, the action could not be maintained. So that the question now presented, namely, whether in case a much larger amount of surface water is turned into a sewer than was contemplated at the time of its construction, and an abutter is injured thereby, he can recover, was not raised or considered in that case. There, the incapacity of the sewer, when constructed, to serve the purpose then contemplated by the city, was the thing complained of, while here it is the overtaxing of the sewer in the manner aforesaid after its construction. We think that in such circumstances the city may properly be held liable for the damages sustained thereby, and hence that the demurrer to the declaration must be overruled.

We now come to the defendant's special plea in bar, which sets up in substance that, prior to and at the time when the plaintiff connected his premises with said sewer, he executed and delivered to the city a certain instrument in writing agreeing "that no claim for damages which may be occasioned to such estate, or any property thereon, in any manner by the construction, use, or existence of such drain or connection, shall be made against the city." To this plea the plaintiff demurs, and we are therefore called upon to determine as to its sufficiency. The particular grounds of demurrer are: 1. That the said agreement was not under seal, and that it contains no release to said city; and 2. That the bringing of the plaintiff's action does not constitute a breach of his said agreement, inasmuch as the damages complained of were not occasioned "in any manner by the construction, use or existence of such drain or connection." Plaintiff also demurs generally to said plea,

alleging that he is not barred by said agreement from bringing his action.

We think the first ground of demurrer is untenable. For, while it is true that said agreement is not technically a release, yet, as said by Durfee, C. J., in Baxter v. Tripp, 12 R. I. 310, where a similar agreement was considered, "it must be held to be at least equivalent to the release required by 97 statute": See Pub. Laws, cap. 313, sec. 5, passed March 28, 1873.

We think the second ground of demurrer is well taken. The agreement in question was evidently entered into in view of the facts and conditions existing at the time, together with such other facts and conditions as might and ought reasonably to have been anticipated from the ordinary growth and development of the contiguous territory. That is to say, the plaintiff knew, or was bound to presume, when he signed said release, that by reason of the construction of other streets in the immediate neighborhood some additional surface water might naturally be turned into said sewer. But he did not know, and had no reason to anticipate, that the city would subsequently so change the grade of said Manton avenue, and of several other streets connected therewith, as to turn a large amount of surface water and sewage, which had formerly flowed in another direction, into said sewer, and thereby cause the same to overflow upon his premises. On the contrary, he had the right to presume that the city would not unreasonably tax the capacity of said sewer, so as to cause him damage. If this were not so, it would be competent for the city, after laying a sewer and obtaining releases from those who should connect their premises therewith, so to overtax the capacity of the sewer as not only to render it useless to abutters, but also to cause it to become a source of constant annoyance and damage to them. We do not think that the statute, under which the release in this case was given, should be so construed as to permit of such a wrong. It is true the language thereof is quite comprehensive, but it does not necessarily include such a claim as that here counted upon by the plaintiff. And as an abutter is compelled to sign a release in order to enjoy the principal benefit to be derived 98 from the construction of the sewer, we think it should be construed as favorably to him as its terms will reasonably allow. And it is unreasonable to suppose that the general assembly intended that the release required of an abutter, as a condition of his connecting his premises with the sewer, should absolutely and forever bar him from all claims whatsoever

which might subsequently arise by reason of such connection. Suppose, for instance, that the city should neglect the duty of keeping the sewer in proper repair, and the plaintiff should be damaged thereby, could it be reasonably claimed that said release would bar him from recovery? We think not. The city is not absolved from the discharge of its duty in the premises in this regard by reason of the release; nor can it so change the plan which it adopted when the sewer was built as to render the sewer a nuisance to him. Moreover, it would clearly be against public policy to allow the city to shield itself behind an agreement of this sort from the consequence of its own negligence: See the suggestion of Durfee, C. J., in Baxter v. Tripp, 12 R. I. 318.

If the city desires to drain a much larger territory by the use of said sewer than was originally contemplated, and than said sewer is capable of draining, it must increase its capacity. It cannot materially change its plan as to the territory to be drained without also changing its plan as to the size of the

sewer.

For any error in judgment on the part of the city authorities in devising and adopting a plan for taking care of the surface water and sewage of a given district, or of the city as a whole, many, and perhaps a majority, of the courts, hold that no responsibility exists, as in so doing the city is exercising a legislative or quasi judicial power, and not discharging a merely ministerial duty. But having once adopted a given plan and constructed the sewers in accordance therewith, the judicial discretion ends and the ministerial duty begins. And, like an individual, it then ordinarily becomes liable for damages to others resulting from the negligent discharge or the negligent omission to discharge such duty: Child v. Boston, 4 Allen, 41, 81 Am. Dec. 680.

99 Finally, we fail to see how the case at bar can be distinguished, on principle, from that of Inman v. Tripp, 11 R. I. 520, 23 Am. Rep. 520. In that case this court held that it was an invasion of private property for the city so to grade its streets as to collect the water from a wide area and then empty it, charged with all its miscellaneous filth, upon the plaintiff's land. In the case at bar, the declaration shows that the city, by changing the grade of several streets, has unreasonably overtaxed the sewer with which the plaintiff's premises are rightfully connected, and has thereby caused a retroflux of sewage through said connection and upon his premises, to

his damage. And we fail to see how this act of the city is any less an invasion of private property than was the act of the city in the case just mentioned.

The defendant's demurrer to the declaration is overruled and the plaintiff's demurrer to the defendant's plea in bar is sustained.

Case remitted to the common pleas division for further proceedings.

SEWERS-INSUFFICIENT CAPACITY - LIABILITY.-When a city provides waterways, they must be sufficient to carry off the water which may reasonably be expected to accumulate: Spangler v. San Francisco, 84 Cal. 12, 18 Am. St. Rep. 158, 23 Pac. 1091. If a sewer, whatever its plan, is so constructed as to cause a positive and direct invasion of the plaintiff's private property, as by collecting and throwing upon it, to his injury, water or sewage which would not otherwise have flowed or found its way there, the city is answerable: See the monographic note to Chalkley v. Richmond, 29 Am. St. Rep. 739; and compare the extended note to Goddard v. Harpswell, 30 Am. St. Rep. 387, 391.

SEWERS--OVERTAXING CAPACITY-LIABILITY.—A city established a system of sewerage, and built a sewer to drain a hitherto undrained district, which proved insufficient to carry off the sewage turned into it, and overflowed upon the plaintiff's land. With knowledge of this the city continued to attach lateral sewers to the main sewers, increasing the injury to the plaintiff's property. Held, that the city was liable: Seifert v. Brooklyn, 101 N. Y. 136, 54 Am. Rep. 664, 4 N. E. 321.

SEWERS-LIABILITY.-THE ADOPTION OF A GENERAL PLAN OF SEWERAGE involves the performance of a duty of a quasi judicial character, but the construction and regulation of sewers, and the keeping them in repair after the adoption of such general plan, are ministerial duties, and a municipality which constructs and owns such sewers is liable for the negligent performance of such duties: Chicago v. Seben, 165 Ill. 371, 56 Am. St. Rep. 245, 46 N. E. 244. A city is not answerable for an injury to pri vate property by the overflowing of a sewer, caused by its incapacity, resulting from a mere error of judgment not amounting to gross negligence: Rice v. Evansville, 108 Ind. 7, 58 Am. Rep. 22, 9 N. E. 139.

Am. St. Rep., Vol. LXXIX-5