Alden v. City of Minneapolis

• Decision Date: 29 October 1877
• Parties: A. M. Alden v. City of Minneapolis
• Court: Minnesota Supreme Court

24 Minn. 254

A. M. Alden v. City of Minneapolis

Supreme Court of Minnesota

October 29, 1877

[Syllabus Material] [Syllabus Material] [Syllabus Material]

Plaintiff, who had occupied the basement of a building near the intersection of Nicollet and Third streets, in the city of Minneapolis, brought this action to recover damages for the alleged negligence of the defendant in establishing the grades of the said streets, and in the construction of the sewers, gutters and catch-basins thereon, whereby the surface waters flowed into the said basement, and destroyed the goods of the defendant stored therein. The cause was tried in the district court for Hennepin county by Vanderburgh, J., and a jury. Under objection and exception, the court permitted the defendant, upon cross-examination, to question certain witnesses as to the character of the land in said locality, and also as to whether the water was not now drained off better than it was before there was any system of drainage, and as to whether the sewer on Nicollet street was not large enough for all practical purposes. Witnesses for the defendant were likewise permitted to testify that that section of the town was low; that portions of the year it was under water; and that before the grading was done the water would settle in Third street, run across Hennepin avenue, and finally settle down about Third and Nicollet streets.

In charging the jury the court, among other things, said: "The improvement of the public streets, under our municipal charter, is subject to the government of the common council, and independent of any special statute controlling the matter. Much is left to their discretion in reference to city improvements; in reference to the manner and time for introducing these improvements; when they will make sewers; the kind of sewers and gutters they will construct. Of course it is a matter for consideration by the governing power of the city, and in reference to these matters they act in a judicial character, exercising their judgment and discretion as to the time and manner of making such improvements. And if the improvements are made in pursuance of such judicial action on the part of the governing power, then the parties are without remedy as against the city for the mere non-action of council; that is, for any delay in making such improvements. Nor is the city liable for the reason that it may not determine upon the best system of improvements. One kind of improvements may be better than another; one kind of sewers may be better than others; still both might subserve purposes of drainage. There may be questions as to what would be the best kind or system of drainage; there may be questions as to the different size and shape of the sewers, and many other points of consideration in the determination of such matters. I say considerations of this kind cannot be taken into account on the question of liability; I mean as a ground of liability for any error of judgment in this regard."

To which part of the charge the plaintiff specially excepted.

In adverting to the construction of a sewer on Nicollet street, the court also said: "It is claimed that there was a gutter on Nicollet street, and such as was ordinarily constructed. It is not claimed that they were the best gutters, neither that they were made with any great degree of skill or expense; still it is claimed that there was a certain system of drainage. It does no appear that these gutters were any the less effective by reason of the construction of the sewer. * * * * * * If one sewer is constructed with other smaller sewers, it might be a help to the drainage and render it more effective than it was before. Unless it was defective, or suffered to become obstructed in some way, then there could be no cause of action, because it was some improvement on what it was before. These small sewers did some good. The mere fact that they had not done all that they might have done, would afford in itself no ground of action, provided there was no negligence or fault in the matter of its repair, or the matter of its being kept free from obstructions, or any unskillfulness in its construction."

The court also read the following requests to the jury in behalf of the defendant:

1. That if the plan of surface-draining adopted and carried out by the city was as good as the topography of the ground will warrant, the city cannot be held liable for damages resulting from surface water.

2. That if the city has adopted as good a system of drainage as its finances will reasonably warrant, it cannot be held liable for not undergoing extraordinary expenses for making a better.

3. That the city cannot be held liable for an error of judgment in not constructing a sewer of sufficient capacity to carry off all the surface water that may run into it.

4. That if the sewer on Nicollet street has not increased the quantity of surface water running into plaintiff's premises, plaintiff cannot recover on account of any defect of the sewer in the matter of its capacity to discharge water.

The court then further charged as follows: "On the other hand, bear in mind the distinctions that the court has intimated to you. If the jury should find that there was negligence on the part of the city, or want of repair in the sewers or gutters already made and constructed by them, or negligence in suffering them to become obstructed, and that by reason of such negligence damage has resulted to the plaintiff which you can connect with such negligence, then the plaintiff is entitled to recover."

Again, in alluding to an alleged cutting of a drain across Hennepin avenue, under the direction of the street commissioner, the court said: "The street commissioner, * * * doing acts of his own motion, such as the changing of the drains independent of the governing act of the city, which might result in turning water upon the premises of another party -- this would be a matter of a different kind from the mere construction or making improvements, ordered and carried on by the city in regular course. This evidence, I suppose, has reference to the alleged cutting of a drain across Hennepin avenue. It was an act of the street commissioner. He changed the flow of water, according to his testimony, from that drain, where it went before, and took it through the center of the street, where the street railway was constructed. I think this would be placed upon different grounds of liability. Such an independent act of an officer as that, not in pursuance of the general plan of improvements, or the special improvements ordered by the city, if it should result in turning the water on plaintiff's premises, and he should be injured by it, and you so find, would be a ground of liability." This portion of the charge was likewise excepted to by plaintiff.

The plaintiff also excepted to each of defendant's requests, and the whole charge. The jury rendered a verdict for the defendant, and a motion for a new trial having been denied, the defendant appealed.

Merrick & Gove, for appellant.

The statement of the court that the gutters were none the less effective by reason of the construction of the sewer was not sustained by any evidence in the case.

The fourth request was immaterial to the issues in the case. City of Dixon v. Baker, 65 Ill. 518; S.C. 16 Amer. Rep. 591. It is true that under the charter (Sp. Laws 1874, p. 117) no action could be maintained against the city for refusing or omitting to construct sewers; but, having constructed sewers, the obligation was imperative upon the city not only to have them constructed properly, but to see that they were kept in good repair. Barton v. City of Syracuse, 37 Barb. 292; Nims v. Troy, 59 N.Y. 500; Griffin v. New York, 9 N.Y. 456; McCarty v. Syracuse, 46 N.Y. 194. The city was responsible for the condition of the sewer, and is liable for all damage sustained by the plaintiff, (White Lead Co. v. Rochester, 3 N.Y. 463; Wendell v. City of Troy, 4 Keyes 272;) the doctrine being well established by adjudicated cases that when a duty of a ministerial character is imposed by law upon a public officer or corporation a negligent omission to perform that duty creates a liability on the part of such officer or corporation; and such liability may be enforced by a civil action. Adsit v. Brady, 4 Hill 630; Robinson v. Chamberlain, 34 N.Y. 389; Hutson v. The Mayor, 9 N.Y. 169; Barton v. The City of Syracuse, 36 N.Y. 54.

The act of the street commissioner, in excavating a ditch across Hennepin avenue, bound the city, and the law recognizes no such distinction as the court made in its charge. Kobs v. City of Minneapolis, 22 Minn. 159.

The verdict was so directly...