Larson v. Busse (In re Town Ditch No. 1 of Pleasant Mound Tp., Blue Earth Cnty.)
| Decision Date | 22 November 1940 |
| Docket Number | Nos. 32598-32601.,s. 32598-32601. |
| Citation | 208 Minn. 566,295 N.W. 47 |
| Parties | In re TOWN DITCH NO. 1 OF PLEASANT MOUND TP., BLUE EARTH COUNTY. LARSON et al. v. BUSSE et al. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Blue Earth County; Harry A. Johnson, Judge.
Proceeding in the matter of Town Ditch No. 1 of the Township of Pleasant Mound, Blue Earth County, Minn. The Town Board of Pleasant Mound having established the ditch, Sam Busse and others appealed to the district court where their respective claims for damages were tried to a jury. A verdict was directed against all of them except Sam Busse. From an order granting a new trial, Fred W. Larson and the Township of Pleasant Mound appeal.
Order affirmed.
The rule (of Sheehan v. Flynn, 59 Minn. 436, 61 N.W. 462,26 L.R.A. 632) that by reasonable drainage works on his own premises, a landowner may dispose of surface water as best he can, so long as he does not unreasonably injure his neighbor, applies only to private rights and the exercise thereof. It has no application to a public drainage proceeding wherein the statute requires compensation to all who suffer damage.
Wilson & Blethen, of Mankato, for appellants.
V. V. Lindgren, of Winnebago, and Frundt & Morse, of Blue Earth, for respondents.
The town board of Pleasant Mound in Blue Earth county having established town ditch No. 1 (), Busse, Hayward, Wojahn and Parker, respondents here, appealed to the district court where their respective claims for damages were tried to a jury. A verdict was directed against all of them except Busse. On his claim, for the special and limited damage hereinafter mentioned, the jury awarded him $100. Thereafter, the landowners made separate motions for new trial. All were granted exclusively upon the ground of error in directing a verdict against Hayward, Wojahn, and Parker, and by instruction limiting Busse's damages to those arising from the location on his land of an outlet and appurtenant catch basin. From the order granting the new trial, Larson, whose land was the only beneficiary of the drainage, and the township appeal.
Larson owns the southeast quarter and Busse the southwest quarter of section 36. The Hayward, Wojahn and Parker lands lie to the north. Beginning some miles to the south and running northward through Busse's east 80, over the Hayward, Wojahn and Parker lands, is a shallow but well-defined watercourse. On Larson's land is what counsel call a ‘pothole’ or slough with an area of some ten or more acres. What little but inadequate natural drainage it has is southward. Along the Larson-Busse boundary is a well-defined ridge. So far as we can gather, it is partly on Larson's but mostly on Busse's land. The proposed ditch begins in the Larson slough and runs due west 700 feet, 285 of which are on the Busse property. The drain is of 10-inch tile, 17 feet under ground at the highest point of the ridge on the Busse land.
At the outlet there is to be a small, shallow, concrete catch basin, calculated, we suppose, to prevent erosion. For the location and maintenance of this catch basin on his land, the jury awarded Busse $100 as damages, under instruction that he could recover on no other ground, that he was ‘not entitled to recover any damages for the water that is drained onto him by reason of the construction of this ditch.’
Direction of the verdicts against three of the landowners and the indicated limitation of Busse's damages were put upon the familiar rule of Sheehan v. Flynn, 59 Minn. 436, 61 N.W. 462,26 L.R.A. 632. It is that a landowner may dispose of surface water as best he can so long as he uses his own land so as not unnecessarily or unreasonably to injure his neighbor's. He is entitled so to get rid of it even though it is thereby conveyed upon the land of another, if the latter is not thereby unreasonably injured.
That rule relates exclusively to private rights and activities. It imposes upon the lands of a lower owner a quasiservitude for the private purposes of the upper owner. It has no application to public drainage proceedings, which are justified only to serve public rather than private purposes. There must be showing, Mason Minn.St.1927, § 6842, of public benefit such as that to highways or the public health.
The question is not before us, so we are assuming that the ditch will be of public benefit. Otherwise, this proceeding would not have been authorized under the statute. Had the latter not made public benefit a condition of such proceedings, it would have been unconstitutional under the rule of State ex rel. Schubert v. Board of Supervisors of Town of Rockford, 102 Minn. 442, 114 N.W. 244,120 Am.St.Rep. 640.
This being a public proceeding, no land can be taken or damaged, without offsetting benefit, unless compensation is first made or assured. The town is exercising the governmental right of eminent domain. So the adversely affected landowners are entitled to compensation for all damages.
The rule of Sheehan v. Flynn, supra (see, also, Rieck v. Schamanski, 117 Minn. 25, 134 N.W. 228) would have protected Larson in reasonable drainage undertaken privately by him on his own land. But when, instead of a private enterprise, we have a public one (compare State ex rel. Wickstrom v. Board of County Com'rs, 98 Minn. 89, 94, 107 N.W. 730), prosecuted for the public benefit and with aid of the power of eminent domain, the private rule of Sheehan v. Flynn, supra, ceases to operate and the public one (of the statute, Mason Minn.St.1927, §§ 6846, 6849, requiring compensation for all property taken or damaged), takes hold of the situation in controlling fashion.
Cited in opposition to our conclusion is Board of Drainage Com'rs v. Board of Drainage Com'rs, 130 Miss. 764, 95 So. 75, 79, 28 A.L.R. 1250. The contest there was not between individuals, or between individuals and governmental subdivisions, but between two groups of drainage districts. All of them, we assume, were public corporations exercising governmental powers, including that of eminent domain. Notwithstanding, the discussion of the relative rights of upper and lower riparian owners was in terms of private rather than public rights. The decision was that the upper drainage districts could burden a natural watercourse even beyond its capacity with no resulting legal damage to the lower districts, whose actual substantial damage was conceded. The rule was adopted as the better one ‘in view of the peculiar local conditions [of the Mississippi delta] and topography.’ Any other and contrary rule, it was considered, ‘would, in effect, destroy the legislative policy as manifested in’ the ‘drainage district laws' of Mississippi. It was frankly recognized that the decision ran counter to much authority. The distinction between cases involving opposition of public rights to each other, and those in similar conflict between private, or between private and public rights, could not have been overlooked because it was made in the concurring opinion of Mr. Justice Ethridge whose protesting concurrence was based exclusively upon earlier decisions in which he had dissented. His final submission was that ‘the drainage laws ought to be so shaped that injury would be cared for, but this is a matter which the court cannot properly take care of.’
So we think that case is plainly distinguishable in that our statutes declare that when drainage is undertaken by public authority, rather than in the exercise of private right, all damage to landowners must be compensated.
The argument is strongly urged that, as to damage resulting from flowage of lower lands, this is a case of damage without legal injury, and so without right to compensation. That would be true if Larson owned the Busse quarter along with his own, for then he would be in the exercise of lawful right 1 in doing just what the town is doing by way of drainage. Also, it may be postulated, that if the town were exercising the police power of government, without more, the case would be one of damnum absque injuria, or uncompensated duty of submission. Gray v. Reclamation District, 174 Cal. 622, 163 P. 1024. The complete answer is that, the constitution aside, the statute governing this proceeding, Mason Minn.St.1927, §§ 6846, 6849, requires compensation to all who suffer damage. Hence, it is of no consequence that there may be an element of police power activity in the proceeding. Also invoked are the powers of taxation and eminent domain. Curran v. County of Sibley, 47 Minn. 313, 50 N.W. 237;State ex rel. Utick v. Board of County Com'rs of Polk County, 87 Minn. 325, 92 N.W. 216,60 L.R.A. 161; 2 Dunnell, Minn.Dig. (2 ed.) § 2819.
The opposing argument is that, if the power of eminent domain is used to effectuate a purpose of police power, there is ordinarily no right to compensation. Whether and under what circumstances damage from an exercise of the police power alone is compensable is a problem we do not consider or decide. Highways are established and maintained by the police power. 25 Am.Jur., Highways, § 19; State ex rel. City of Minneapolis v. St. P. M. & M. Ry. Co., 98 Minn. 380, 387, 108 N.W. 261, 28 L.R.A.,N.S., 298, 120 Am.St.Rep. 581,8 Ann.Cas. 1047. Yet abutting owners, whose property is damaged, as by change of grade, but not taken, are now entitled to compensation. They were not before the amendment of constitutions and statutes to require compensation for damage as well as taking. Dickerman v. City of Duluth, 88 Minn. 288, 92 N.W. 1119;Sallden v. City of Little Falls, 102 Minn. 358, 113 N.W. 884, 13 L.R.A.,N.S., 790, 120 Am.St.Rep. 635.
The statute under which the town is proceeding requires compensation. That should be enough. But we examine the proposition somewhat further. As Mr. Rottschaefer states (Rottschaefer, Constitutional Law, p. 694), private property may be taken under the...
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