H. Christiansen & Sons, Inc. v. City of Duluth

• Decision Date: 20 February 1948
• Docket Number: No. 34539.,34539.
• Court: Minnesota Supreme Court
• Parties: H. CHRISTIANSEN & SONS, Inc. v. CITY OF DULUTH.

225 Minn. 475
31 N.W.2d 270

H. CHRISTIANSEN & SONS, Inc.
v.
CITY OF DULUTH.

No. 34539.

Supreme Court of Minnesota.

Feb. 20, 1948.

Action by H. Christiansen & Sons, Incorporated, against the City of Duluth to recover damages alleged to have been caused to plaintiff's dock and business by defendant through the defendant's maintenance of its dock and wharf on land owned by it and in water adjacent to plaintiff's dock in the Duluth-Superior harbor. From an order overruling a demurrer to both causes of action but certifying that the questions presented were important and doubtful, the defendant appeals.

Affirmed.

See, also, 31 N.W.2d 277.

[31 N.W.2d 271]

Syllabus by the Court.

1. In considering sufficiency of complaint to state cause of action on challenge to same by general demurrer, court cannot speculate as to evidence which may be submitted thereunder or consider whether such evidence will establish an action for negligence, if complaint is sufficient in action for damages based upon public nuisance or trespass.

2. Where action for damages against municipality is founded on nuisance or trespass and no allegations of negligence are set forth in the complaint, such complaint sets forth a cause of action notwithstanding the absence of an allegation of notice as prescribed in M.S.A. s 465.09, and applicable in actions against municipalities founded on negligence.

3. A complaint which sets forth an action founded upon nuisance or trespass is sufficient if it sets forth allegations of plaintiff's ownership and possession of the property involved, defendant's wrongful entry or acts of trespass thereon, and plaintiff's damages, notwithstanding the absence therein of allegations of intentional harm or the application of direct force by defendant.

4. While nuisance may be created and maintained as a result of negligence and the distinction between the two is not clearly defined, generally speaking, a nuisance may also be created and maintained without negligence as its primary cause.

5. An action for nuisance based upon the violation of a statute does not necessarily rest upon negligence, since the violation of a statute may be treated as trespass, conversion, fraud, nuisance, or other tort separate and distinct from negligence.

6. Where complaint alleged that defendant, in violation of 33 U.S.C.A. ss 407, 409, obstructed channels of navigation used by plaintiff and otherwise interfered with plaintiff's right of navigation, Held that although the primary purpose of such statute was the protection of the public in its right to navigation, nevertheless plaintiff, as a private party alleging special damages by reason of the violation thereof, could maintain an action at law against defendant for such violation.

7. If plaintiff's action is supported by evidence establishing that defendant created and maintained a public nuisance which resulted in a trespass upon plaintiff's property, or in violation of a statute obstructed navigation, and that such acts were the proximate cause of damage to the plaintiff, plaintiff may recover notwithstanding failure to give the statutory notice prescribed in s 465.09 and required in actions against municipalities founded upon negligence.

Appeal from District Court, St. Louis County; Victor H. Johnson, Judge.

[31 N.W.2d 272]

Harry E. Weinberg, City Atty., and Harry T. Lathrop, Asst. City Atty., both of Duluth, for appellant.

Lewis, Hammer & Heaney, of Duluth, for respondent.

THOMAS GALLAGHER, Justice.

Action to recover damages alleged to have been caused to plaintiff's dock and business by defendant through the latter's maintenance of its dock and wharf upon land owned by it and in water adjacent to plaintiff's dock in the Duluth-Superior harbor.

Plaintiff sets forth two causes of action in its complaint. In both of them it alleged that it is a corporation ‘engaged in the purchase, sale and transportation of fish and other merchandise’ and in the ‘transportation by water of freight * * * for hire. * * * with fishing boats,‘ and that it operated freight and other boats between the ‘port of Duluth and other ports in interstate and foreign commerce,‘ and ‘In connection with said business, * * * owned a dock and wharf, together with a warehouse, storage plant, * * * and other property. * * * adjacent to’ the Duluth-Superior harbor; and that the edge of said navigable waters touched and served plaintiff's described property.

The first action is based upon defendant's acts in maintaining its dock and wharf adjacent to plaintiff's in such a manner that it became a Public nuisance and source of danger to property in its vicinity, with the result that it broke, fell into the water, and Trespassed upon and against plaintiff's dock, causing the damages alleged.

The second cause of action is based upon defendant's acts in maintaining its dock in such a place and condition that it was liable to and did fall into the navigable waters of the United States, and hence impeded and obstructed navigation, including the property of plaintiff used in navigation, all in violation of the laws of the United States, 33 U.S.C.A. ss 407,¹409.

Following service of the complaint, defendant interposed a demurrer to each of the causes of action on the ground, among others, that the facts alleged therein did not constitute a cause of action. From an order overruling the demurrer as to both causes of action, but certifying that the questions presented were important and doubtful, this appeal is taken.

In substance, defendant's contentions are that plaintiff's actions, while based upon nuisance, trespass, or violation of a statute, nevertheless in reality are founded upon allegations that defendant's negligence created the nuisance or trespass alleged; that defendant is a municipal corporation, and hence that M.S.A. s 465.09, requiring written notice as a prerequisite to actions against municipalities based upon negligence, became applicable; that plaintiff failed to give such notice; and that its complaint, failing to allege such notice to defendant, stated no cause of action.

Plaintiff denies that its complaint is based upon negligence, but, on the contrary, asserts that it is based solely on the grounds that defendant maintained a Public nuisance resulting in trespass to plaintiff's property in violation of the common law and federal statutes; and, this being true and there being no allegation of negligence in either cause of action, that the written notice prescribed by s 465.09 was unnecessary.

Specifically, plaintiff's first cause of action alleges that for many years prior to November 7, 1943, defendant—

'caused and permitted its said dock and wharf to become and to be a public nuisance as defined (by the) * * * statutes of the State of Minnesota, in that it became and was so...