Kobs v. City of Minneapolis

• Decision Date: 24 August 1875
• Citation: 22 Minn. 159
• Parties: CARL KOBS <I>vs.</I> CITY OF MINNEAPOLIS.
• Court: Minnesota Supreme Court

22 Minn. 159

CARL KOBS vs. CITY OF MINNEAPOLIS.

Supreme Court of Minnesota.

August 24, 1875.

Appeal by defendant from a judgment of the municipal court of the city of Minneapolis, where the action was tried before Cooley, J., without a jury.

Merrick & Morrison, for appellant.

D. A. Secombe, for respondent.

CORNELL, J.

The complaint, after averring plaintiff's ownership of lot 7, in block 17, in Northrup's addition to St. Anthony, in the east division of the city of Minneapolis, charges that in June, 1874, "by order of the city council of said city, the street commissioners of the second ward of said city, wherein said lot is situated, dug and excavated a culvert or ditch through Ninth avenue north, from said block 17 to the block opposite thereto, on the other side of the street, and that by reason thereof, and by means thereof, a large stream and quantity of water, which was standing on said last mentioned block, ran through said culvert or ditch with great force and violence, and so ran on to the said lot, and greatly damaged and injured the said dwelling-house of plaintiff, then being on his said lot." Said complaint also charges that said culvert or ditch was so dug and excavated "in a careless, negligent and unreasonable manner, and it was solely by reason thereof, and by means thereof, that said dwelling-house was so damaged and injured." It will be noticed that there is an apparent inconsistency in the two causes of action here set forth, as the pleader in the one grounds plaintiff's alleged injury upon the digging of the ditch, without reference to the manner in which it was dug, and in the other bases it solely upon the careless, unskilful and unreasonable manner in which it was dug, and it may well be that under a proper objection, taken at the right time, the plaintiff would have been confined to a recovery under one of these counts alone. But inasmuch as no point of this kind was made in the court below, when the error could have been corrected by an amendment of the pleadings, and as the cause was tried without reference to it, and upon the merits as disclosed by the evidence introduced without objection, it is proper to disregard it in this court.

The answer impliedly admits the digging of the ditch, but takes issue upon the other averments of the complaint. Upon the issues thus made the findings of the court are substantially in favor of the plaintiff, although somewhat objectionable in not properly distinguishing between facts and evidence of facts, and in incorporating in its conclusions of law some findings upon matters more proper to be embraced in its statement of facts found. But as the record brings up the whole evidence and proceedings, from which the court is enabled to determine as to the correctness or incorrectness of the general legal conclusion and judgment of the court below, it is unnecessary more particularly to notice the objectionable features of such finding.

In O'Brien v. City of St. Paul, 18 Minn. 176, the municipal corporation defendant was held liable in a civil action to the plaintiff for damages occasioned by the maintenance of a sewer erected by defendant, which conducted to, and emptied upon, plaintiff's premises, to his injury, a greater body of water than the natural flow through a water-course that ran through his premises, draining the adjoining lands; and the court say: "This, whether done by a corporation or an individual, is prima facie wrongful, and a nuisance. If circumstances exist which would rebut the prima facie wrongful character...