Bayfield County Bank v. Duluth Log Co. 141 Wis. 1. ers to the bank by indorsement; that said checks were purchased by the plaintiff pursuant to an agreement between the plaintiff and the Jacobs-McDonnell Company, by which the plaintiff agreed to purchase the checks and claims at their face and the Jacobs-McDonnell Company agreed to pay interest on them from the time of the purchase until they fell due; and that the plaintiff was entitled to judgment of lien on the posts, poles, and timber described in the complaint, a part of which was in the possession of the defendant the Duluth Log Company. The referee's report was confirmed by the court and judgment entered thereon, from which the Duluth Log Company appeals. For the appellant the cause was submitted on the brief of Archibald McKay. A. W. McLeod, for the respondent. WINSLOW, C. J. A number of errors are assigned, but only two are argued, and these are all we deem it necessary to consider. It is first contended that the evidence clearly shows that the plaintiff paid the time checks instead of purchasing them. This contention must be overruled. The so-called checks were simply memorandums of the number of days' work done. and the balance due therefor, signed by the foreman and payable at the plaintiff bank. They were not directed to any person or corporation as the payor. It is true that the evidence was somewhat vague as to the arrangement under which the bank cashed them, but it was certainly sufficient to justify an inference of fact that the bank agreed to and did purchase them and did not agree or intend to pay them. It is said that the plaintiff could not join, in one action, claims on a number of time checks. There seem to be two answers to this contention: First, the objection was not taken either by demurrer or answer and hence is waived; second, sec. 3333, Stats. (1898), expressly gives one employee the Hart v. Neillsville, 141 Wis. 3. right to take by assignment the claims of others and enforce them all in one action. It then makes such claims generally assignable, and gives the assignee the same rights of enforcement as the assignor. Thus the assignee, who is not himself an employee, is put upon the same footing as an employee with regard to the enforcement of such claims. By the Court.-Judgment affirmed. HART, Respondent, vs. CITY OF NEILLSVILLE, Appellant. October 29-November 12, 1909. Municipal corporations: Sewerage: Insufficiency: Injury to property: Liability: Notice: Contributory negligence: Burden of proof. 1. If a municipality, without first having duly adopted a plan, constructs and puts in operation an unsuitable sewer system, it is liable to a private property owner for damage caused proximately to his property by the insufficiency without contributory negligence of such owner. 2. If a municipality puts a sewer system in operation, having first duly adopted plans therefor, and the same is insufficient because of failure to exercise ordinary care in executing such plans, it is liable for injuries proximately caused to private property, without concurrence of contributory negligence of the owner thereof. 3. In the circumstances stated in No. 1 and No. 2, the insufficiency being inherent in the plans or original construction, notice to the city from the beginning of the difficulty, sufficient to charge it with liability, is presumed. 4. If a municipality is free from actionable negligence, respecting adoption of plans for its sewer system and constructing and putting the system in operation, but the system proves not to be reasonably suitable, and it fails reasonably to remedy the deficiency within a reasonable time after having received actual, or constructive, notice thereof, it is liable the same as in case of want of ordinary care inhering in the installation of the system. 5. If a property owner knows, actually or constructively, of a deficiency in a municipal sewer system rendering it dangerous to connect his property therewith by a drain with an open end in Hart v. Neillsville, 141 Wis. 3. his basement, yet he does so, he is guilty of contributory negligence precluding him from recovering for an injury to such property, proximately caused or aided by such circumstance. 6. If a person connects the basement of his dwelling house with a main sewer in front thereof, by a drain, leaving the basement end open, and he thereafter perceives that it is dangerous to his property, he cannot recover damages from the municipality for injury thus caused to such property, which ordinary care on his part, after discovering the danger, would have prevented. 7. If all the conditions exist, rendering a municipality liable to a property owner because of sewage passing from a public main sewer to and into his dwelling-house basement by way of a drain-pipe connection between such main and such basement, unless the inflow is permitted by a defect in the drain for which the property owner is wholly or partially responsible,-the burden of proof is on the defendant to show want of ordinary care of such owner. 8. In the circumstances stated in No. 7, and it appearing that damage was caused by back flow of sewage from the drain, caused by insufficiency of the sewer system, such sewage reaching the basement through a defect in the drain, as apparently attributable to want of ordinary care of the property owner as attributable to actionable insufficiency of the sewer system, the former cannot recover. 9. In an action for damages upon the ground of an injury having been produced by want of ordinary care on the part of the defendant, it is incumbent on the plaintiff to show, by evidence, with reasonable distinctness, how and why the damages occurred. 10. In the circumstances stated in No. 9, if whether the real cause of the injury was a condition negligently created by plaintiff, without which the injury would not have occurred notwithstanding the negligence of the defendant, or was the latter negligence, rests wholly in conjecture, he cannot recover. [Syllabus by MARSHALL, J.] APPEAL from a judgment of the circuit court for Clark county: JAMES O'NEILL, Circuit Judge. Reversed. Action to recover compensation for injuries, claimed to have been caused plaintiff's residence property by escape of water and sewage into the basement of his dwelling house, by reason of the negligent condition of defendant's sewer system. The complaint was to this effect, after stating the corporate Hart v. Neillsville, 141 Wis. 3. existence of the defendant and describing the property in question: Adjoining the basement of plaintiff's dwelling house, there was a well from which he was accustomed to obtain a supply of pure water for domestic purposes. The basement wall, practically, formed one side of the well. The house fronted on Fifth street. The basement was used for a furnace and fuel room and storage place for such domestic supplies as are customarily kept in such places. A part of the sewer system, constructed and maintained by defendant, was located on Fifth street. It was constructed under municipal authority at the expense of abutting property owners; plaintiff paying his due proportion thereof. An opening was left by the municipality in front of plaintiff's property to enable him to connect his premises therewith, and such connection was made with due care under the supervision of defendant's duly authorized officers. The sewer system was unskilfully constructed, in that the portion on Fifth street was too small to accommodate the sewage which was designed to be and was turned into it. The catch-basins were so located as to turn surface water into the sewer, far in excess of its capacity, and the slope toward the outlet was insufficient. It was so constructed, in connection with other portions of the system, that a creek, called Goose creek, in which great quantities of surface water customarily accumulated, flowed into it, so such inflow, that from catch-basins and from private property connections, greatly overtaxed the capacity of the sewer and caused the contents thereof to back up and escape through connecting drains into basements on abutting property, including plaintiff's premises. The city sewage system was so designed and constructed that substantially all the sewage of the city, discharged from the numerous private connections, and all the surface water, including much of that flowing into Goose creek and then into the sewer connected therewith, were obliged to pass to the outlet on the bank of O'Neill creek through a sixteen-inch pipe, which was much too small Hart v. Neillsville, 141 Wis. 3. to discharge the same with sufficient freedom to prevent backing up. By reason of the facts aforesaid, on and between July 3, 1903, and March 24, 1904, to wit, on said July 3d, and on July 9th, August 4th, September 12th, 13th, and 14th, and March 24th, the connection between plaintiff's basement and the main sewer was filled up and rendered useless, so that large quantities of the contents of the main were discharged into said basement and into the well, filling said basement to a depth of several feet and the well to a like level, rendering the dwelling house untenantable, destroying the well, causing the ground around and a part of the well to cave in, the basement wall to settle and fall in and the building to settle, its walls to crack, and the structure otherwise to be seriously damaged. The sewer was constructed without any plans having been adopted and without any regard to adapting capacity to the work required, with the consequences stated. Prior to the injuries to plaintiff's property, defendant had notice of the dangerous condition of the sewer system, as alleged, and that such condition was remediable by enlarging the outlet into O'Neill creek and closing the inlet from Goose creek. When plaintiff connected his property with the sewer system he did not know of its insufficient charHe thereafter used ordinary care to guard his premises from invasion from the sewer, and such invasion as occurred was without his fault. Because of the wrong complained of, his property has been damaged to the extent of $1,500. acter. The trial court sustained a demurrer to the complaint for insufficiency. On appeal, the decision was reversed. The case is reported in 125 Wis. 546, 104 N. W. 699. Such proceedings were duly had, after the reversal aforesaid, that defendant answered, admitting all allegations of the complaint, not fatally affecting the claim for damages, alleging that the sewer system was constructed, in all its parts, according to a plan duly adopted. and putting in issue all allegations as to negligent construction or maintenance or insuf |