O'Brien v. City of St. Paul

• Court: Minnesota Supreme Court
• Writing for the Court: McMillan
• Citation: O'Brien v. City of St. Paul, 18 Minn. 163 (Minn. 1873)
• Decision Date: 01 January 1873
• Parties: MICHAEL O'BRIEN v. CITY OF ST. PAUL.

Page 163

18 Minn. 163

MICHAEL O'BRIEN

v. CITY OF ST. PAUL.

Supreme Court of Minnesota.

Appeal by defendant from a judgment of the district court, Ramsey county.

The action was to recover damages to plaintiff's land by maintaining a sewer which emptied upon it, and for an injunction.

It was tried before a referee, who found in favor of plaintiff, upon which judgment was entered.

W. A. Gorman, City Atty., for appellant.

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I. V. D. Heard, for respondent.

McMILLAN, J.

In a civil action for a nuisance the complaint must state facts which in law constitute a nuisance from which the plaintiff has suffered special injury. Under a complaint stating a nuisance of one kind, it is not permitted to prove a nuisance of a character essentially different. For a supra riparian owner to increase the flow of a natural water-course by draining into it other streams so as to injure a lower riparian owner is a nuisance, and actionable by the latter; so also is the fouling of the water-course by the supra riparian owner. But in an action by the lower riparian owner, under a complaint stating a cause of action of the first kind only, he could not prove a nuisance of the latter kind.

The complaint in this case states only a cause of action for increasing the flow of the water-course through plaintiff's lots, and does not state any facts showing that the water is fouled by the defendant; the finding of the referee, therefore, that the water "discharged through the sewer is frequently unhealthy and offensive from the decayed matter contained therein, and causes plaintiff's premises to be less valuable for occupation than they would otherwise be," is not within the issues, and the defendant's objection that this portion of the finding cannot be considered, either as ground of injunction or damages, must be sustained. So, also, for the same reason, as well as other obvious reasons, we must exclude from our consideration at this time the further fact found by the referee, "that the defendant has since the commencement of this action extended said sewer about 10 feet upon and over plaintiff's said premises, and without the consent of said plaintiff." Exclusive of these facts, the referee finds that the defendant is, and for the last 15 years has been, a municipal corporation of this state; that the plaintiff is and has been since July 3, 1869, the owner in fee of certain premises in the report described, upon which, in the spring of 1870, he erected a dwelling house, which he now occupies as a homestead; that for more than 10 years past the defendant...