Nelson v. McKenzie-Hague Co.

• Decision Date: 29 June 1934
• Docket Number: No. 29640.,29640.
• Citation: 256 N.W. 96,192 Minn. 180
• Parties: NELSON et al. v. McKENZIE-HAGUE CO.
• Court: Minnesota Supreme Court

256 N.W. 96

192 Minn. 180

NELSON et al. v. McKENZIE-HAGUE CO.

No. 29640.

Supreme Court of Minnesota.

June 29, 1934.

Appeal from District Court, Crow Wing County; Alfred L. Thwing, Judge.

Action by E. W. Nelson and wife against McKenzie-Hague Company. From an order denying its motion for judgment notwithstanding the verdict for plaintiff or a new trial, defendant appeals.

Order reversed with directions.

Drew & Cain, of Minneapolis, for appellant.

Ryan, Ryan & Ryan, of Brainerd, for respondents.

STONE, Justice.

In an action to recover damages for tort, the jury returned a verdict for plaintiffs, husband and wife. Defendant appeals from the order denying its motion for judgment notwithstanding or a new trial.

Plaintiffs declared upon two causes of action. The recovery of the first, which declared in trespass, is not disputed and not under review on this appeal. The second cause of action stands exclusively upon the theory of nuisance. There was a verdict for $1,500, an amount concededly not excessive. Defendant's claim that as matter of law it is not liable raises the only question for decision.

The case is here upon a bill of exceptions. By their candor and mutual accommodation in so abridging the record counsel have saved expense for their clients and have aided us in our task of review. Their example is commended to the attention of the bar generally.

Defendant in 1931 and 1932, under contract with the state made through the state highway department, constructed a bridge to carry trunk highway No. 2 over the Mississippi river at Brainerd. Having previously deeded one lot to the state, plaintiffs, during the construction of this bridge, owned and had their dwelling on three lots adjoining the river and the highway. Properly to perform its contract, it was necessary for defendant to blast solid rock and use pile drivers and other ponderous and noise-making machinery. Plaintiffs' dwelling, which during part of the period of construction was within 40 feet of some of the blasting operations but later moved to a more distant point on plaintiffs' land, was substantially damaged by the vibrations. The comfort of plaintiffs and their family and their quiet enjoyment of their property was much interfered with. As stated before, there is no claim, in the cause of action now under review, that defendant was guilty of any negligence or trespass. The only hypothesis now properly advanced to support liability is that of nuisance.

1. The argument that defendant was guilty of a private nuisance under 2 Mason's Minn. St. 1927, § 9580, ignores the fact that it was proceeding in a lawful manner to perform a duty owing to the sovereign state. So far as it relies upon the statute, the argument for plaintiffs ignores "the settled rule of construction that the sovereign authority of the country is not bound by the words of a statute unless named therein, if the statute tends to restrain or diminish the powers, rights, or interests of the sovereign." U. S. v. Herron, 20 Wall. (87 U. S.) 251, 255, 22 L. Ed. 275; Academy of Fine Arts v. Philadelphia County, 22 Pa. (10 Harris) 496.

While that rule was born of common-law notions of kingly prerogative, the reason for applying it in our representative government is equally cogent, for so applied it has the "same ground of expediency and public convenience." 25 R. C. L. 784; 59 C. J. 1121; Commonwealth v. Baldwin, 1 Watts (Pa.) 54, 26 Am. Dec. 33; People v. Herkimer, 4 Cow. (N. Y.) 345, 15 Am. Dec. 379 (Anno. 380); State ex rel. Davis v. Love, 99 Fla. 333, 126 So. 374. In United States v. Hoar, 2 Mason, 311, 314, Fed. Cas. No. 15,373, Mr. Justice Story in discussing this question said: "But independently of any doctrine founded on the notion of prerogative, the same construction of statutes of this sort ought to prevail, founded upon the legislative intention. Where the government is not expressly or by necessary implication included, it ought to be clear from the nature of the mischiefs to be redressed, or the language used, that the government itself was in contemplation of the legislature, before a court of law would be authorized to put such an interpretation upon any statute. In general, acts of the legislature are meant to regulate and direct the acts and rights of citizens; and in most cases the reasoning applicable to them applies with very different, and often contrary force to the government itself. It appears to me, therefore, to be a safe rule founded in the principles of the common law, that the general words of a statute ought not to include the government, or affect its rights, unless that construction be clear and indisputable upon the text of the act." See, also, State v. City of Milwaukee, 145 Wis. 131, 129 N. W. 1101, annotated in Ann. Cas. 1912A, at page 1214.

As a practical matter and inescapably, almost every large public work must necessarily be done in a manner to create a nuisance within the meaning of the statute (2 Mason's Minn. St. 1927, § 9580) if it is applicable, where persons happen to reside close to the work. There is the constant noise of heavy machinery. Frequently, and wherever solid rock is encountered in excavation, there is not only the noise of blasting but also vibrations in the ground which may reach to great distances and be very annoying to occupants of buildings within its reach. If perchance conditions require work to go on in the nighttime, as they did here, the annoyance is greatly aggravated and in a nonlegal but very real sense much of a nuisance. If the private nuisance statute is applicable to such situations, it must be held in consequence in every such case not only that a nuisance has been created, but also that the state itself is the real tort-feasor. Moreover, on that hypothesis, every public work would be subject to injunction, which would result in great inconvenience and expense to the public at large. Finally, all officers and other agents of the state engaged in the work, including the laborers, would be by the state caused to be tort-feasors. It would be manifestly unthinkable that the statute was intended to bring about any such absurd result even though the general rule of construction above referred to had never been heard of.

2. This is no case of mere legal authorization by the state. Our state highways are built by the state itself, in its capacity as a sovereign. Their construction is not merely authorized; it is directed. The highway commissioner is the agent of the state for that purpose. Mandatory is his duty to construct roads and the bridges necessary to make them complete. Once he has contracted for their construction, it is the legal duty of the contractor to perform his contract. Such a contract makes the contractor the agent of the state and clothes him with something more than mere authority to proceed. It puts upon him the legal duty to do so. How, then, so long as he is guilty of no negligence or trespass, does he commit a legal wrong in performing, in the only way it can be performed, the affirmative duty he owes the state?

If, perchance, doing the work in the only way it can be done results in consequential damage to third persons, there is of course fault — a misfeasance. But it is that of the state in not providing compensation for the damage before instituting the work. The making of such compensation is not the duty of the contractor. Upon what basis, then, can we hold him liable in damages for an obligation which neither legally nor morally is his, but is solely that of the sovereign state?

If the contractor in such case is to be held liable for consequential damages, it must follow, irresistibly, that the highway commissioner is equally so. But the latter result we have definitely negatived. "It is well settled that an officer charged with the performance of such duties [as those of the highway commissioner] is not personally liable * * * for acts done within the scope of his authority, unless it appears that the particular acts complained of were not only unnecessary, but were done corruptly or maliciously." Wilbrecht v. Babcock, 179 Minn. 263, 264, 228 N. W. 916. That does not exclude liability for an independent wrong such as negligence or trespass. Nelson v. Babcock, 188 Minn. 584, 248 N. W. 49, 90 A. L. R. 1472. But no such tort is now charged against the present defendant, who was proceeding with the performance of a lawful contract, an obligation to the sovereign state lawfully imposed upon it.

The authorities are in hopeless conflict. 1 Street, Foundations of Legal Liability, 44. But there appears what seems to us a logical and compelling theory of decision. Before we can hold against defendant we must find him guilty of a wrong — a breach of some duty which he owed plaintiff. The precise point of law was determined against plaintiffs by the Supreme Court of the United States in Northern Transportation Co. v. City of Chicago, 99 U. S. 635, 640, 25 L. Ed. 336, where there had been damaging interference with the plaintiff's property by the defendant in the construction of a tunnel for the city. The argument for the plaintiff was "that though the city had the legal right to construct the tunnel, and to do what was necessary for its construction, subject to the condition that in doing the work there should be no unnecessary interference with private property, yet it was liable to make compensation for the consequential damages caused to persons specially injured."

The argument so summarized by the court was thus refuted by it: "It is undeniable that in making the improvement of which the plaintiffs complain the city was the agent of the State, and performing a public duty imposed upon it by the legislature; and that persons appointed or authorized by law to make or improve a highway are not answerable for consequential damages, if they act within their jurisdiction and with care and skill, is a doctrine almost universally accepted alike in England and in this country. *...