McClure v. Wing

• Decision Date: 28 July 1881
• Citation: 28 Minn. 186,9 N.W. 767
• Parties: MCCLURE v THE OF RED WING.
• Court: Minnesota Supreme Court

28 Minn. 186

9 N.W. 767

MCCLUREvTHE OF RED WING.

Supreme Court of Minnesota.

Filed July 28, 1881.

Appeal from order of district court, Goodhue county.

J. C. McClure, for appellant.

F. M. Wilson, for respondent.

MITCHELL, J.

Action for damages to plaintiff's real property, resulting from the alleged negligence and wrong of defendant. When plaintiff rested his case, the court, upon motion of defendant, under plaintiff's objection, dismissed the action. Plaintiff appeals from an order refusing a new trial. The evidence introduced by plaintiff upon the trial tended to prove the following facts: This evidence will be better understood in connection with the annexed plat, Exhibit A, ^* which was also received in evidence as being a correct map or plat of the property in question and its surroundings. Lots 1 and 2, block 7, marked A, are the premises of plaintiff. Southerly from these premises there is a ravine, as indicated on the plat, running from Bush street, diagonally, in a north-easterly direction to Seventh street, and thence to the Mississippi river. This ravine is some three rods wide. On each side side of it is a hill or bluff 15 to 20 feet high. Through this ravine, before the laying out and grading of the street hereinafter mentioned, was a water-course, or channel, some six or eight feet wide, and from four to five feet deep, indicated by the arrows. Into this ravine, from the south-west, enter two other ravines, each about a mile and a half long. All the water that came down these two last-mentioned ravines from rains and melting snows, flowed into the first-named ravine, and followed the well-defined channel indicated by the arrows, and passed on down into the river. This was the only means of escape. This water, in times of heavy rains, frequently formed quite a large and rapid stream, but when allowed to follow its natural channel, or course, it passed at some distance from plaintiff's property.

The surface of the ground drained by these ravines was hilly, and the ravines large. In 1878 the city of Red Wing laid out, opened, and graded a street down and across this ravine, known as the “Plum-street extension,” the easterly line of which is marked B B, and the westerly line C C. It will be observed that the lines of this street crossed the channel or water-course in this ravine first at D, and again at I and F. When the street in question was graded, this channel, at D, was entirely filled up, and a dam, five or six feet high, built across it from D to Bush street, thus entirely preventing the water from following the natural channel. The city then constructed a sewer on this street, indicated by the dotted line in the street, running from the bridge, across Bush street, down the street, and again coming out into the natural channel at F. This sewer was three and a half feet wide and four and five-sixths feet high, but entirely inadequate in capacity to receive or carry off the volume of water which frequently came down the ravine in case of heavy rains or storms. The surface of the street was not made level, but considerably higher on the west side, and sloping towards the east. A stone and earthen dam was built on the easterly line of the street at F, so that water flowing down on the street was prevented from passing off the street at F into the channel in the ravine. From the bridge, on Bush street, to E, there is a depression across the street, so that water that does not pass through the sewer is all thrown over towards the easterly side of the street. The result of these acts of the city was that in case of heavy rains more water came down the ravine than could pass through this sewer, and accumulated at the mouth of the sewer K, and then ran down upon and along the whole length of the street, and, being prevented from re-entering the natural channel at F by reason of the dam at that point, flowed on down to G, and across Seventh street, upon the premises of plaintiff, in large and destructive quantities, and produced the injury complained of. The evidence, we think, also fairly tends to show that this sewer was not of such a size as might reasonably have been considered sufficient to carry off the volume of water that might naturally have been anticipated at times to flow through this ravine, judging from its past history. It will be observed from the foregoing that the injury complained of was caused by the acts of the defendant city in obstructing the natural channel for this water, and in failing to provide another outlet for it of adequate capacity.

Owing to the vast number of adjudicated cases on the subject, and their frequent conflict with each other, the whole subject of the liability of municipal corporations for injuries to private property in consequence of being overflowed with water, caused by improvement upon streets, is involved in no little obscurity. It would be useless to attempt to consider all the cases on that subject, or attempt to reconcile them. On principle, we believe that, so far as the circumstances of the case and public necessity will permit, the same rules should be applied to such corporations in the management and improvement of their streets as would be applied to a private individual in the management and use of his private property. Such a rule would have a salutary effect in inducing care on the part of municipalities to avoid injuries to private property, and would operate justly in giving redress to private persons if such injuries are inflicted. We do not deem it necessary to determine whether this was a “natual water-course,” or mere “surface” water, under the legal definitions of these terms. If it be surface water, the general common-law doctrine that neither the retention nor repulsion of surface water is an actionable injury must necessarily be materially modified in such cases. In a broken and bluffy region of country, like that part of south-eastern Minnesota adjacent to the Mississippi river and its tributaries, intersected by long, deep coolies or ravines, surrounded by high, steep hills or bluffs, down which large quantities of water from rain or melting snow rush with the rapidity of a torrent, often attaining the volume...