Cahill v. Eastman

• Decision Date: 01 January 1873
• Citation: 18 Minn. 292
• Parties: WILLIAM F. CAHILL and others v. WILLIAM W. EASTMAN and others.
• Court: Minnesota Supreme Court

18 Minn. 292

WILLIAM F. CAHILL and others

v. WILLIAM W. EASTMAN and others.

Supreme Court of Minnesota.

Appeal by defendants from an order of the district court, Hennepin county, denying a new trial.

D. A. Secombe and James Gilfillan, for appellants.

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Lochren & McNair, for respondents.

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RIPLEY, C. J.

The plaintiffs claim as assignees of a lease dated June 28, 1854, from Franklin Steele to John Rollins and others of a certain water privilege and mill-site, situate on the east side of Hennepin Island, below the Falls of St. Anthony, described as follows: "Commencing 128 feet below an oak tree marked `K,' opposite the brink of the falls on the east side of said island, and running thence 80 feet along the edge of the east bank of said island down the stream, and extending east into the stream from the east edge of said island 60 feet, embracing a space 60 by 80 feet, as above described. The said Steele agrees to keep an open space, 60 feet in width, immediately adjoining and in front of the premises above described, connecting with a public road or way leading to the bridge across the stream to the east bank, * * * and to furnish sufficient quantity of water to run four run of stone in a grist-mill to be erected on said premises by said lessees, * * * this lease to continue for the term of five years. * * * Each party shall choose one disinterested person, who, in case of disagreement, are hereby authorized to choose a third, who shall appraise the yearly value of the premises hereby leased for another period of five years, and the lessees shall have the privilege of holding the said premises for said additional term of five years upon paying to the lessor such annual sum as the said appraisers shall name. * * * In case the lessees should elect not to pay such sum as may be found or specified by said appraisement, the value of the improvements made by the lessees shall be appraised in the manner above described, and the lessor shall pay the said value so appraised, which shall terminate this lease.

"At the expiration of 10 years from the date thereof the lease shall be continued or terminated in the same manner, and on the same terms and conditions; and so, at the expiration of each period of five years, the value of the premises leased or the improvements thereon shall be appraised, and the lease continued or terminated another five years, as the lessees may elect.

"But at the end of 20 years, if said lease be not sooner terminated, the lessor shall have the right to terminate the same upon paying the lessees, or their representatives, the value of the improvements upon the above premises, appraised in the manner above specified."

The lessees agreed "peaceably to surrender and deliver up possession of the said premises to said Steele, * * * at the expiration of this lease, whether terminated at the election of the lessees, as herein prescribed, or at the expiration of 20 years from the date hereof, upon the payment for the improvements made on said premises."

This lease having been continued till June 28, 1869, appraisers chosen by the then parties in interest, assignees respectively of the lessor and lessees, on July 21, 1869, appraised the yearly value of the premises for the ensuing five years. Said assignees of the lessees thereupon notified the assignee of the lessor that they would not accept said appraisal, and demanded an appraisement of the improvements, and appraisers were appointed, who, disagreeing, appointed a third; the three could not agree and ceased acting, making no award. The assignees of the lease remained in possession till December 3, 1869, when they executed and delivered a deed to two of the plaintiffs, purporting to convey to them the said lease and leasehold estate, who went into possession, and on January 8, 1870, executed and delivered a deed to the other plaintiff, purporting to convey one undivided third of said lease and leasehold estate, of which plaintiffs have since been in possession.

Upon this state of facts the defendants contend that the lease terminated on the twenty-first of July, 1869, and that thereafter the lessees had only a claim against the lessor for the value of the then existing improvements. We think, on the contrary, that the lease, by its terms, would not terminate till after payment by the lessor of the appraised value of the improvements. No such appraisement having been had the lease remained in force.

The plaintiffs were, then, on and after said eighth day of January, the owners and in possession of said lease and leasehold estate on Hennepin Island, which island divides the waters of the Mississippi river into two channels at the falls, and above and below them, extending for about 1,000 feet above and 500 feet below. The bed of the river below is about 30 feet lower than the bed of the river above; a stratum of limestone about 10 feet in thickness forms the bed of the river above the falls and extends across the island, and rests upon hard sand to the depth of the bed of the river below the falls.

Prior to October 4, 1869, the defendants dug a tunnel six feet high from the lower end of Hennepin Island, and under the entire length of said island, and for a distance of 300 feet under the bed of the river and mill-pond above the upper end of said island through the hard sand under said stratum of limestone, and at a depth of more than 30 feet below the level of the bed of the river above the falls. Just opposite the plaintiffs' mill it was dug within 75 feet of the east shore, which was a steep, perpendicular bank down to the bed of the river below the falls, and as low as the bottom of the tunnel.

On said fourth of October the waters of the river burst into said tunnel at its upper end, and rushed through it in great volume, filling it, and rending the rocks and tearing away the ground to a considerable extent on the top and sides for its entire length. Thereafter the flow of water through it was in most part stopped; but in April, 1870, during the ordinary spring freshet, the water again burst into said tunnel, filling it and rushing through it with such volume and force that it washed out and undermined the lower end of the island between the tunnel and the eastern shore, on which plaintiffs' mill stood, from the mouth of the tunnel to plaintiffs' mill, and washed out and undermined the land on which plaintiffs had a right of way, and on which their mill stood, to the injury of plaintiffs' warehouse, mill, and machinery.

The land through which the tunnel was dug belonged to the St. Anthony Falls Water-Power Company, the assignee of Steele.

The case does not disclose the object of the work. The defendants, however, dug the tunnel for their own purposes, whatever those were, and nothing appearing to the contrary, it must be taken, of course, that they did so with license of the owners of the soil.

That the defendants did not own the soil could not, of course, lessen the liability, if any, which they might, because of their operations therein, incur with respect to plaintiffs. If the owner could not have made the excavation with impunity, certainly one who was not the owner could not. On the other hand, the owner might authorize another to do that which he could lawfully do himself. Nor would it be material for plaintiffs to show that the possession and control of the tunnel, which the defendants, in the nature of things, must have had while digging it, continued down to the time of the injury to plaintiffs. If they were responsible for the consequences of the excavation they could not evade them by giving up such possession and control to others. Eastman v. Amoskeag Co. 44 N. H. 143.

In considering, therefore, what liability the defendants incurred towards plaintiffs, they will be spoken of as if they owned the soil in which the tunnel was dug.

The defendants contend that plaintiffs cannot recover, without proof of negligence or unskillfulness on the part of the defendants in the construction of the tunnel, and that they maintained it in that condition until the time of the injury; and they take a position with respect to the facts, the correctness, or otherwise, of which is, as we think, material to the decision of the case.

It was not the tunnel, they say, but the water which did the mischief. They did not bring or collect this in the tunnel. It was collected in the river, and burst into the tunnel from some cause not shown, from the wrongful act of a stranger, from the act of plaintiffs, from vis major, or the act of God. As this argument concedes, there is no proof, and in the absence of proof there is no presumption, that the breaking in of the water was due to either of the causes specified.

The complaint describes the excavation, and alleges that it was done so negligently that the water burst in. The answer denies that the work was done negligently.

As the case discloses only the bare fact of the excavation of the tunnel, the strongest way in which this can be taken for defendants, is that the most careful and skillful person would have dug just such an one, believing it to be safe. If, nevertheless, the water burst in, this cannot be said to be the result of some cause not shown. The pleadings disclose the cause, viz., the superior force of the water overcoming the resistance which the roof of the tunnel, as defendants had constructed it, opposed to it. Then it may be said with entire correctness that the tunnel itself brought the water into it.

If the defendants had removed the whole of the river bed at the upper end of the tunnel, so as to allow the water to flow into it, no one would dispute but that the tunnel thus constructed was the cause of that effect. Where is the difference between that and what actually happened, viz., the flowing in of the water upon the removal of the river...