H. Christiansen & Sons 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.

31 N.W.2d 270

225 Minn. 475

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

No. 34539.

Supreme Court of Minnesota.

February 20, 1948.

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

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.

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. §§ 407,¹ 409.

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. § 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 § 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 dilapidated and in such a state of serious disrepair that its foundation continually became undermined and washed away; and the timbers supporting said dock, as well as the timber and planking out of which said dock was made, became and continued to be badly decayed and insecure, so that said dock and wharf over a period of many years prior to November 7, 1943, became a source of danger to persons who might go thereon and to property in its vicinity. That for many years, Defendant's said dock had tended to interfere with and obstruct and had interfered with and obstructed the lake, bay and the navigable waters of said harbor. That Defendant maintained said dangerous public nuisance for many years, so that danger and damage were certain to result from the operation of natural forces thereon. That Defendant, for many years, maintained its said dock in such a dilapidated condition that it was likely to fall into the water of the harbor and to injure both persons and property. That said dock did in fact so fall and damaged Plaintiff's business and property.

"* * * That * * * Plaintiff had many times warned and requested Defendant to suppress and to remove said dangerous nuisance. * * *

* * * * * *

"That Defendant's said nuisance, and Defendant, by its maintenance of said nuisance, wrongfully and unlawfully broke and entered Plaintiff's property with force and violence and trespassed thereon, to Plaintiff's great damage." (Italics supplied.)

The allegations set forth in the first cause of action are realleged in the second cause of action, but added thereto are allegations that defendant, in violation of 33 U.S.C.A. §§ 407, 409, maintained its dock in such place and condition that it was liable to be washed into the navigable waters of the United States, and —

"* * * That Defendant's unlawful acts were not only liable to impede or obstruct navigation, but also were very likely to cause damage to Plaintiff and others similarly situated. That Plaintiff and its property are within the class or group of persons and property intended to be protected by the said laws of the United States [33 U.S.C.A. §§ 407, 409].

"That Defendant's unlawful acts obstructed and impeded navigation on the navigable waters of the United States * * *. That Defendant's said acts have obstructed and impeded Plaintiff's navigation and operation of boats which it formerly used and operated in transporting freight and passengers for hire in commerce by water. That since November 7, 1943, and because of Defendant's unlawful act as herein alleged, it has not been possible for Plaintiff to use or operate its said boats, and it has not operated them as it formerly did, for the reason that it has not been possible to use them or to operate them without dock facilities, which facilities were destroyed by Defendant's unlawful act and which Plaintiff has not been able to rebuild or reacquire. That, as a result, Plaintiff's navigation business has been destroyed, and it has ceased to operate boats which it operated before Defendant obstructed and impeded navigation * * *."

1. Plaintiff's action contains no allegations of negligence. All reference to the term is carefully avoided. Its first cause of action is based exclusively upon defendant's creation and maintenance of a public nuisance, the consequence of which was a trespass upon plaintiff's property, resulting in damage thereto as well as to plaintiff's business. The second cause of action re-alleged the creation and maintenance of a public nuisance resulting in trespass upon plaintiff's property and damage thereto, and further alleged that defendant's actions therein constituted a violation of 33 U.S. C.A. §§ 407, 409, because they interfered with navigation in general, and plaintiff's right of navigation in particular, not only by damaging plaintiff's property used in navigation, but also by impeding and obstructing the channels of navigation used by plaintiff and others.

At this stage of the proceedings, we are not required to speculate as to the evidence plaintiff may be required to submit to sustain the allegations thus made or to consider whether such evidence will establish that plaintiff's damages were the result of negligence on the part of defendant. 5 Dunnell, Dig. & Supp. § 7549. Based upon authorities hereinafter referred to, it appears that the first cause of action, founded upon nuisance followed by trespass, as alleged, is sufficient as against a general demurrer.

2. It is well established that the same acts or conditions may and often do create liability either for negligence or for nuisance; and while, generally speaking, a nuisance presupposes negligence, negligence is not necessarily one of the material elements of either trespass or nuisance. Power v. Village of Hibbing, 182 Minn. 66, 233 N.W. 597; Nienow v. Village of Mapleton, 144 Minn. 60, 174 N.W. 517; Bohrer v. Village of Inver Grove, 166 Minn. 336, 207 N.W. 721; Johnson v. City of Fairmont, 188 Minn. 451, 247 N.W. 572.

Defendant's contention that the notice to it provided for in § 465.09 is a necessary prerequisite to these actions based upon nuisance or trespass is not in accord with our decisions on this point. Thus, in Hughes v. Village of Nashwauk, 177 Minn. 547, 554, 225 N.W. 898, 900, which involved an action for trespass upon plaintiff's premises caused by a nuisance maintained by defendant, where no statutory notice was given, we stated:

"The complaint in the present case alleges such an invasion of the plaintiff's premises and the creation of a nuisance thereon. In that situation it appears to be settled by our decisions above noted that an equitable action to enjoin the nuisance and recover damages therefor would not come within the statute requiring...