O'Brien v. City of St. Paul

• Decision Date: 30 October 1878
• Citation: 25 Minn. 331
• Parties: JOHN C. O'BRIEN <I>vs.</I> CITY OF ST. PAUL.
• Court: Minnesota Supreme Court

25 Minn. 331

JOHN C. O'BRIENvs.

CITY OF ST. PAUL.

Supreme Court of Minnesota.

October 30, 1878.

Appeal by plaintiff from an order of the district court for Ramsey county, Simons, J., presiding, sustaining a demurrer to the complaint.

James B. Beals, for appellant.

Wm. P. Murray, for respondent.

GILFILLAN, C. J.

Appeal from an order sustaining a general demurrer to the complaint. The substance of the complaint is: That the city established the grade of, opened, graded and improved, Hoffman avenue, a public street in the city, extending along and upon the side of a high bluff, known as Dayton's bluff. Conway street, another public street, intersects Hoffman avenue nearly at right angles, and extends down the face of the bluff. Down the face or surface of this bluff, a large amount of water, from a great extent of country beyond it, drains, at the time of every considerable fall of rain, and, before Hoffman avenue was graded, reached the flat below by means of many natural channels or depressions in the face of the bluff, without flowing upon plaintiff's lots, which lie down the bluff, about fifty feet below the grade of the avenue. The grading and improving of the avenue interfered with the natural flow of the water falling in rains, upon, back of and beyond the bluff, diverted it from its natural channels, and caused it to flow along the avenue from both directions to its intersection with Conway street, and to collect at that point in great and dangerous quantities, so as to flow with great violence over the grade of the avenue upon the lots below. The city (negligently, as is alleged,) failed to care for, or carry away, or provide any means for carrying away, the water accumulating at that point in times of rain. On two specified occasions, great and dangerous quantities of water, which had fallen in showers, collected, by reason of the grade of the avenue, at its intersection with Conway street, and was discharged from the avenue upon lots abutting thereon, and over said lots upon the lots of plaintiff, doing great damage.

There is, in the complaint, a general allegation that in all respects the grading and improving of the avenue was negligently and improperly done, and that the city negligently and wrongfully failed to keep the avenue open and in good repair, and free from obstructions and nuisances, as it is bound by its charter. But it is not alleged in what particulars (aside from so establishing the grade, and grading, as to accumulate surface water, and failing to make provision for preventing the accumulated water flowing upon and injuring private property,) the grading was negligently or improperly done; and those indefinite allegations are not sufficient to raise any material issue.

The only point presented by the complaint is as to the right of a municipal corporation to so grade or improve its streets as to collect surface waters in large and dangerous quantities, and permit them to discharge upon lots of private owners, injuring or destroying them, without making compensation. The question has never before been presented to this court. O'Brien v. City of St. Paul, 18 Minn. 176, was a case of unlawful interference with a natural water-course, and all the decisions hold that for such an interference a municipal corporation is liable to the same extent as a private person. Kobs v. City of Minneapolis, 22 Minn. 159, was not a case of water collected and discharged upon private property, by grading or improving a street, but of water discharged upon one lot, for the purpose of relieving another. In Lee v. City of Minneapolis, 22 Minn. 13, there was no accumulating of surface water, but, as a consequence of raising the grade of a street, the rain-water falling upon it spread into the lot of the plaintiff; and in Alden v. City of Minneapolis, 24 Minn. 254, the street grades did not turn upon the plaintiff's premises any greater quantity of water than, in the natural condition of the surface, would have settled there; and the only question was, whether a muncipal corporation is liable for neglecting to construct sufficient sewers and gutters, where the necessity for them is not created by the act of the corporation. In the first of these two cases, the court held the corporations liable; in the last two, not liable. There are many cases, of which a leading one is Radcliff v. Mayor of Brooklyn, 4 N. Y. 195, to the effect that for consequential damages to private property, caused by grading streets within the authority conferred on a municipal corporation, there is no remedy to the owner, unless one is given by statute; and some cases, following the one cited, have applied the principle where the damages were not merely consequential, but direct and immediate. Other decisions attribute to a municipal corporation, in the control and improvement of streets for public use, the same rights and power as a private owner has over his own land, subject to the same liabilities; and hold that the corporation will be liable for damages caused to private property by grading streets, when a private owner of the soil over which the streets are laid would be liable if improving it for his own use; and that the right to cause damage beyond that which a private owner may cause without liability must be acquired through the right of eminent domain. Nevins v. Peoria, 41 Ill. 502; Aurora v. Gillett, 56 Ill. 132; Same v. Reed, 57 Ill. 29; Rhodes v. Cleveland, ...