Hamilton v. City of Bismarck
| Citation | 300 N.W. 631,71 N.D. 321 |
| Decision Date | 05 November 1941 |
| Docket Number | 6730 |
| Court | United States State Supreme Court of North Dakota |
Syllabus by the Court.
1. In constructing a sewer system, a city acts in a governmental capacity.
2. A municipal corporation is not liable for damages caused by an over-flow of its sewers occasioned by extraordinary rains or floods.
3. Section 14 of the North Dakota Constitution does not deal with damages resulting from the negligence of public corporations or their agents but only with those damages that are a consequence of the exercise of the power of eminent domain.
4. Where the right to take or damage private property for public use is acquired by contract, and nothing to the contrary appears, the acquisition is presumed to be accompanied by the same rights as though the power of eminent domain had been exercised in accordance with statutory and constitutional provisions.
Appeal from District Court, Burleigh County; R. G. McFarland, Judge.
Action by David Hamilton against the City of Bismarck to recover for damages to plaintiff's property as result of the overflow of a sewer. From an order granting the plaintiff a new trial the defendant appeals.
Order reversed.
Hyland & Foster, for appellant.
Granting an extension of time without good cause being shown is merely a judicial error and does not amount to a loss of jurisdiction. Quashnick v. Sandbo, 61 ND 599, 239 NW 164.
Public policy demands that there be some point of time when a valid judgment, regularly entered, becomes final and unassailable. Skaar v. Eppland, 35 ND 116, 159 NW 707.
When a motion for a new trial is made upon the minutes of the court it must be heard within thirty days after the coming in of the verdict. Edelstein v. Levine, 179 Minn 136, 228 NW 558; Cox v. Selover, 165 Minn 50, 205 NW 691.
The statutory grounds for motions for a new trial are exclusive. Matt v. Nomland, 69 ND 552; Higgins v Rued, 30 ND 551, 153 NW 389; Dubs v. Northern P.R. Co. 47 ND 210, 181 NW 606.
In case the governing body of a city, duly authorized thereunto by its charter, adopts a plan for a sewerage system and executes the same, it is immune from injuries resulting to private property, not involving an unconstitutional taking thereof, but which are referable to defects in the plan itself. Hart v. Neilsville, 1 LRA(NS) 952; Moulton v. Fargo, 39 ND 502, 167 NW 717; Snyder v. St. Paul, 51 Minn 466, 53 NW 763.
Murray & Murray, for respondent.
Property cannot be damaged by public use without just compensation. Mayer v. Studer & M. Co. 66 ND 190, 262 NW 925; King v. Stark County, 66 ND 467, 266 NW 654.
This is an action for damages to plaintiff's property resulting from the overflow of a sanitary sewer through a manhole outlet.
In 1938, the plaintiff and his wife purchased, by contract for deed, a tract of land in the Park Hill Addition to the city of Bismarck. Plaintiff resides on this tract which consists of about one-half acre of land. The main sanitary sewer of the city passes through Park Hill Addition on its way to the Missouri River where the sewage is discharged. Plaintiff's lot, as well as the land surrounding it, is approximately level. A manhole is located about 25 feet from the corner of plaintiff's lot and about 100 feet southwest of his house. The top of the manhole is substantially level with the surrounding ground. It has a 24 inch iron cover that is not fastened down. The manhole is about 4 feet deep. The sewer was laid before the present Park Hill Addition was platted. The property through which the sewer was constructed was a part of section five (5), township one hundred thirty-eight (138), range eighty (80) and at the time of construction in 1923 was owned by I. P. Baker. Baker and the city entered into a written agreement which was recorded in the office of register of deeds of Burleigh county on April 25, 1923. It provides in part, "That said party of the first part, in consideration of the right and privilege herein granted to it to construct, as herein provided, and to maintain said sewer, hereby covenants and agrees to and with the said second party, his heirs and assigns, that at each and every manhole in said sewer as the same may be finally constructed through said Section Five (5), (and there shall not be less than six (6) manholes so constructed), to construct and maintain an opening or outlet controlled by a suitable valve or gate, for the purpose of permitting the water or sewage to escape from said sewer, or to be drawn therefrom if so desired, and at a grade sufficiently low to enable the contents of such 'Main Sewer' to be exhausted through such valves or gates; and that the said party of the second part has the right and the same is granted to him, his heirs and assigns, and such privilege will run with the title to that portion of the said Section Five (5) now belonging to and owned by the said party of the second part, to take from such sewer by means of such openings and valves and gates, and as he, his heirs and assigns, may desire, such part of the water and sewage therein and to use the same for the purpose of and in irrigating and fertilizing such lands as he, his heirs and assigns, may wish and that such privilege within the bounds of said Section Five (5) aforesaid shall be and remain exclusive to the owner of that portion of Section Five (5) aforesaid."
"That said party of the first part further covenants and agrees that the said party of the second part, his heirs and assigns, shall have and hereby grants to the said party of the second part the right to drain surface waters from that portion of said Section Five (5) now belonging to and owned by the said party of the second part, in case of flood or overflow, into the said sewer and to use any or all of the manholes aforesaid, all in the exercise of due care."
In March 1939, an unusual flood condition developed in the Missouri River due to an ice gorge that formed in the river south of Bismarck. Lowlands south of the city of Bismarck were flooded including a part of Park Hill Addition. The flood waters from the river, however, did not overflow plaintiff's premises. The water from the river backed up in the sewer to the extent that it prevented the free flow of sewage therefrom. This caused the sewage to accumulate in the sewer and force its way up through the manhole near the plaintiff's property. The sewage overflowed plaintiff's lot and filled two basements under the house. The plaintiff seeks damages for the injury caused thereby. The jury returned a verdict in favor of the city. The trial court granted plaintiff's motion for a new trial. The matter now comes to us upon appeal from the order granting the new trial.
In his complaint the plaintiff alleges that the defendant carelessly and negligently constructed and maintained the sewer and seeks damages resulting from such negligence. He also alleges that the construction and maintenance of the sewer and manhole through which the sewage escaped constituted the damaging of private property for public use without just compensation within the purview of the provisions of the constitution prohibiting the taking or damaging of private property for public use without just compensation (N.D. Const. § 14). Upon motion of the defendant, made at the beginning of the trial, certain allegations dealing with the plaintiff's personal inconvenience and discomfort were stricken and the issues were confined to damages to property.
The plaintiff introduced evidence tending to show that the sewage injured the soil over which it flowed by lessening its productivity, that it damaged the basements by causing the walls to crumble and required the expenditure of certain sums in employing labor to clean the premises. His evidence also tended to show some damage to personal property including fuel and vegetables in one of the basements. An engineer testifying as a witness for the plaintiff stated that plaintiff's property could have been protected by so constructing the manhole that it extended 8 or 10 feet above the ground.
The defendant's answer denies generally the allegations of the complaint and alleges as a further defense the written contract between the city and I. P. Baker from which we have quoted.
The city introduced evidence showing that the sewer was constructed according to plans and specifications; that after its construction by the city the sewer was accepted by Mr. Baker, the then owner of the premises and that since that time the sewer has been maintained in accordance with the contract between the city and Baker. There is no testimony that the sewer had previously caused any difficulty or that sewage had escaped therefrom although Park Hill Addition had been flooded once by the Missouri River since the sewer was constructed.
Section 3697, N.D. Comp. Laws 1913, vests in cities "power to establish and maintain at any time a general system of sewerage for the city, in such manner and under such regulations as the council shall deem expedient, and to alter or change the same from time to time as the council may...
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