Noonan v. City of Stillwater

• Decision Date: 12 February 1885
• Citation: 33 Minn. 198
• Parties: WILLIAM NOONAN <I>vs.</I> CITY OF STILLWATER and another.
• Court: Minnesota Supreme Court

Page 198

33 Minn. 198

WILLIAM NOONAN vs. CITY OF STILLWATER and another.

Supreme Court of Minnesota.

February 12, 1885.

Plaintiff, who was injured by a fall occasioned by a defective sidewalk in the city of Stillwater, brought this action for damages in the district court for Washington county against the city and one Isaac Gray, who is the owner of the lot abutting upon the defective sidewalk. The defendants separately demurred to the complaint, and the plaintiff appeals from an order by McCluer, J., sustaining the demurrer of defendant Gray, and the defendant the city of Stillwater appeals from an order overruling its demurrer.

J. N. Searles, for plaintiff.

A. E. Macartney, for the City of Stillwater.

Fayette Marsh, for defendant Gray.

GILFILLAN, C. J.

The charter of the city of Stillwater (Sp. Laws 1881, c. 92, subc. 8, § 13, p. 571) makes it "the duty of all owners of land adjoining any street, lane, or alley in said city to construct, reconstruct, and maintain in good repair such sidewalks along the side of the street, lane, or alley next to the lands of such owner, respectively, as may have been heretofore constructed, or as shall hereafter be constructed or directed by the city council to be built, and of such material and width, and upon such place and grade, as the city council may by ordinance or otherwise prescribe." It also provides that such owners shall be liable for all damages, to whomsoever resulting, from their fault or evident neglect in not keeping any such sidewalk in good repair, and in safe, passable condition; and that no action shall be maintained against the city by any person injured through a defect in any sidewalk, unless the owner of the land along which such sidewalk is defective is joined as a defendant; and that, in case of judgment against the defendants, execution shall first issue against the defendant owning the land.

The plaintiff, having been injured through defects in a sidewalk upon a public street in the city opposite a lot owned by the defendant Gray, brings this action. The complaint alleges that the sidewalk was constructed by the city, but in such a way as to be defective and unsafe, and that it is rendered more unsafe by reason of water from natural springs on Gray's lot flowing upon and across and forming ice on it. Each of the defendants demurred to the complaint. The demurrer of the city was overruled; that of Gray, sustained. The city appeals from the order overruling its demurrer; the plaintiff, from that sustaining the demurrer of Gray.

We can see no reason to question the liability of the city. The charter devolves upon it the custody of, and power and control over, streets usually devolved upon city corporations. This creates the duty to keep the same in repair when opened by the city for travel, and the liability for injuries caused by neglect of that duty. City of St. Paul v. Seitz, 3 Minn. 205, (297;) Shartle v. City of Minneapolis, 17 Minn. 284, (308;) Lindholm v. City of St. Paul, 19 Minn. 204, (245;) Moore v. City of Minneapolis, Id. 258, (300.) For this purpose a sidewalk is a part of the street. Furnell v. City of St. Paul, 20 Minn. 101, (117.) The demurrer of the city was therefore properly overruled.

The demurrer of the defendant Gray presents questions of greater difficulty. Can the legislature make it the duty of lot-owners in cities to construct and keep in repair so much of the street to the centre of it as lies in front of the lots, and, upon their failure so to do, make them liable, not to the city, but to any one of the public who may be injured in consequence of the neglect to construct or keep in repair? Some cases attempt to make a distinction between the sidewalk and the remainder of the street in respect to the method of laying the burden of constructing and maintaining the same. But there is no basis for such a distinction. The sidewalk and the remainder of the street are equally for public use, — the rights of the public are the same in each. The rights, as far as the centre of the street, of the owner of an abutting lot are the same in each. That one is reserved for passers on foot, and the other is for the use of vehicles, is only a regulation of the public use for the public good, the public authorities determining how much shall be reserved for sidewalk. The improvement of one is just as much a public improvement, and must have the public need to justify it to the same extent, as the improvement of the other; therefore, if the provisions of this charter as to sidewalks are valid, the legislature may extend them over the remainder of the street, — certainly, to the centre.

The provisions are clearly an attempt to charge upon the property the cost of a public improvement. Making it the duty of the lot owner, as between him and the city, to construct and keep the sidewalk in repair in front of the lot, the city having the right in case of his default to do the work itself and charge the cost to the lot, does not differ essentially, so far as the principles of taxation for local improvements are concerned, from authorizing the city, and making it its duty, in the first instance to do the work, and levy on the lot the expense of so much of it as lies in front of it. Whether that is a proper method under our constitution of apportioning the expense of local improvements to the property chargeable, — that is, whether the expense of a street may be apportioned by charging to each lot the expense of so much of the street to the centre as lies in front of it, — is the first question to be considered. Whether it is competent for the legislature to impose upon the owner of the lot the liability to third persons attempted in this charter is another question, to be considered after the other.

Upon this first question very little aid is to be got from decisions in other states. As affecting the proper basis or method of apportionment in cases of local improvement, the constitutions of the several states differ materially. Each court interprets the constitution of its own state, and decides cases involving the question according to its interpretation. We are not now embarrassed by the question that has vexed many courts, whether the power to impose on property the cost of making and repairing streets is to be referred to the taxing power, the police power, or some other sovereign power. In McComb v. Bell. 2 Minn. 256, (295,) this court held it to belong to the taxing power, and this was reaffirmed and applied in Stinson v. Smith, 8 Minn. 326, (366.) The first question is, therefore, is there in the constitution any limitation or restriction of that power that will prevent the legislature from imposing the cost of such improvements, or the duty as between lot-owners and the city to make them, in the manner provided in this charter?

The only part of the constitution which can be claimed to have that effect is section 1, article 9. Originally that section read: "All taxes to be raised in this state shall be as nearly equal as may be; and all property on which taxes are to be levied shall have a cash valuation, and be equalized and uniform throughout the state." This laid down the rule that taxes should be equal, and that, for the purpose of levying them and preserving equality, the cash valuation of the property to be taxed should be taken as a basis. In Stinson v. Smith, supra, the court decided that the levying of assessments for local improvements came within the rule, and held void an act which authorized such an assessment to be levied on the property benefited in proportion to the benefits resulting thereto, instead of in proportion to a cash valuation. After the decision in that case section 1 was amended by adding: "Provided, that the legislature may, by general...