Moran v. City of St. Paul

• Decision Date: 21 July 1893
• Citation: 54 Minn. 279
• Parties: JOHN D. MORAN <I>vs.</I> CITY OF ST. PAUL.
• Court: Minnesota Supreme Court

54 Minn. 279

JOHN D. MORANvs.

CITY OF ST. PAUL.

Supreme Court of Minnesota.

Submitted on briefs May 24, 1893.

Affirmed July 21, 1893.

Appeal by defendant, the City of St. Paul, from an order of the District Court of Ramsey County, J. J. Egan, J., made September 12, 1892, overruling its demurrer to the complaint.

Plaintiff alleged that in August, 1888, he had a contract with the St. Paul City Railway Company to do the excavating and build the foundation walls for the power house on East Seventh Street in St. Paul. That in doing that work he was hindered, interfered with, and damaged by leakage from the water-main laid by the City in Seventh Street in front of the work. That the large water-main was negligently and carelessly laid and was of poor material and workmanship, and the water escaped therefrom in large quantities, and ran into, and upon, his work and flooded his excavation, and delayed his work upon the foundation and basement walls, to his damage $1,729.40, for which sum he demanded judgment against the City. To this complaint the City demurred. The demurrer was overruled, and the City appeals.

Dan W. Lawler and H. W. Phillips, for appellant.

Charles N. Bell, for respondent.

COLLINS, J.

The complaint herein alleged, as the gist of the action, that defendant city had laid a large water main or pipe in one of its public streets in so careless and negligent a manner, and had used such poor material and defective workmanship, as to cause it to leak, whereby great quantities of water had escaped, and, passing to land adjoining the street, caused plaintiff to be injured and damaged in a certain specified manner. A demurrer was interposed to this pleading on two grounds: First, that there was a defect of parties defendant; and, second, that facts sufficient to constitute a cause of action were not stated therein.

1. There was no defect of parties defendant. The complaint contains the positive averment that the main or pipe in question was laid by the defendant city. Now, it may be true, as argued by counsel for appellant city, that under the provisions of Sp. Laws 1885, ch. 110, and amendments thereto, the enactment thereof being alleged in the complaint, the city could not and did not lay the main or water pipe in question; that the power and authority so to do was conferred exclusively upon the board of water commissioners, and that under the terms of section 34 of said chapter this action should have been brought against that board, and...