Cleveland v. City of St. Paul

• Decision Date: 01 January 1873
• Citation: 18 Minn. 255
• Parties: JOHN R. CLEVELAND v. CITY OF ST. PAUL.
• Court: Minnesota Supreme Court

Page 255

18 Minn. 255

JOHN R. CLEVELANDv.

CITY OF ST. PAUL.

Supreme Court of Minnesota.

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

The action was to recover damages to plaintiff's horse by falling in the night into a ditch across part of Third street. Upon a trial before a referee the plaintiff had judgment.

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

COPYRIGHT MATERIAL OMITTED

C. K. Davis, for respondent.

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McMILLAN, J.

It is not and cannot be disputed that the ditch and embankment made across Third street, the principal thoroughfare of the city of St. Paul, left in the condition it was at the time of the injury complained of, without guard, protection, or light, was a nuisance.

The important question seems to be whether the defendant is responsible for its existence, and liable to the plaintiff in this action for the injuries occasioned by it.

From the finding of the court it appears that "this excavation was made by a firm doing business as plumbers in said city of St. Paul, under the name of Leahy & Co., and was made by them for the purpose of furnishing with water a building situate on the corner of Third and Robert streets, and occupied by the Pioneer Printing Company, by running pipes into said building, and connecting same with the main pipe of the St. Paul Water Company running along Third street. Said Leahy & Co. acted under a contract with said printing company, and had authority from said water company to connect with their main pipe as aforesaid. The St. Paul Water Company is a corporation created under the laws of this state, for the purpose of introducing water into the city of St. Paul, and furnishing the same to the inhabitants thereof."

The authority from the water company to Leahy & Co. to connect with their main pipe was not intended by the water company to make Leahy & Co. their agents in making this connection with the main pipe, for it appears as a part of the same finding that Leahy & Co., in making this connection with the main pipe, acted under a contract with the Pioneer Printing Company. The authority from the water company was a mere license to Leahy & Co. to use the property of the water company, that is, to make this connection with its main pipe. The water company, therefore, was in no way connected with the making of the ditch and embankment, and we are not called upon to consider or determine any questions arising out of the relations of the water company and the city to each other, but are to consider this case entirely irrespective of the rights or liabilities of the water company under its charter.

The act incorporating the defendant provides as follows: "The common council shall have the care, supervision, and control of all public highways, bridges, streets, alleys, public squares, and grounds within the limits of said city, and shall cause all streets which may have been opened and graded, to be kept open and in repair and free from nuisances." Charter, c. 7, § 1, (Sp. Laws 1868, p. 87.)

Third street at the time of the accident had been duly opened and graded by said city, and for a number of years has been much used and traveled upon, and more used and traveled upon than any other street or thoroughfare in said city, by citizens of said city and others....