Persons v. City of Valley City
| Decision Date | 06 December 1913 |
| Docket Number | 81912 |
| Citation | 144 N.W. 675,26 N.D. 342 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Barnes County, J. A. Coffey, J.
From an order sustaining a demurrer to the complaint, plaintiff appeals.
Reversed.
Herman Winterer and David S. Ritchie, for appellant.
If the building in question, or any part thereof, was an obstruction upon the street of the city, the council had the right to remove same. Rev. Codes 1905, § 2678, subd. 10; Ludlow v. Fargo, 3 N.D. 485, 57 N.W. 506.
If the act of the city council was in itself lawful, but the work of carrying it out was done in an unlawful and improper manner and resulted in damage to plaintiff's property, the city is liable. Chicago v. Norton Mill Co. 196 Ill. 580 63 N.E. 1043; Boye v. Albert Lea, 74 Minn. 230, 76 N.W. 1131.
A city in laying out, opening, and caring for its streets, is acting in its municipal capacity. Durkee v. Kenosha, 59 Wis. 123, 48 Am. Rep. 480, 17 N.W. 677.
In such sense, cities are answerable for wrongs and injuries done to private persons or property. Alberts v. Muskegon, 146 Mich. 210, 6 L.R.A.(N.S.) 1094, 117 Am. St. Rep. 633, 109 N.W. 262; Sheldon v. Kalamazoo, 24 Mich. 383.
A city is primarily liable for the acts of its agents, when such agents are doing acts directed to be done by the council, or city acting in its municipal capacity. Bunker v Hudson, 122 Wis. 43, 99 N.W. 448.
The city is liable, notwithstanding the acts of which complaint is made, were done by its agents. Adams v Milwaukee, 144 Wis. 371, 43 L.R.A.(N.S.) 1066, 129 N.W. 518; Potter v. Spokane, 63 Wash. 267, 115 P. 176; Hughes v. Fond du Lac, 73 Wis. 380, 41 N.W. 407; Johnson v. Somerville, 195 Mass. 370, 10 L.R.A.(N.S.) 715, 81 N.E. 268; Naumburg v. Milwaukee, 77 C. C. A. 67, 146 F. 641; Alberts v. Muskegon, 146 Mich. 210, 6 L.R.A.(N.S.) 1094, 117 Am. St. Rep. 633, 109 N.W. 262; East Rome v. Lloyd, 124 Ga. 852, 53 S.E. 103; Gerst v. St. Louis, 185 Mo. 191, 105 Am. St. Rep. 580, 84 S.W. 24; Hathaway v. Osborne, 25 R. I. 249, 55 A. 700; Hunt v. Boston, 183 Mass. 303, 67 N.E. 244; Chicago v. Selz, S. & Co. 202 Ill. 545, 67 N.E. 386, 14 Am. Neg. Rep. 23; Tegeler v. Kansas City, 95 Mo.App. 162, 68 S.W. 953; Chicago v. Spoor, 190 Ill. 540, 60 N.E. 540; Butman v. Newton, 179 Mass. 1, 88 Am. St. Rep. 346, 60 N.E. 401; Brown v. Webster City, 115 Iowa 511, 88 N.W. 1070; Millard v. Webster City, 113 Iowa 220, 84 N.W. 1044; O'Donnell v. White, 23 R. I. 318, 50 A. 333; Larrabee v. Cloverdale, 131 Cal. 96, 63 P. 143; Ludlow v. Mackintosh, 21 Ky. L. Rep. 924, 53 S.W. 524; Norman v. Ince, 8 Okla. 412, 58 P. 632, 6 Am. Neg. Rep. 681; Kane v. Indianapolis, 82 F. 770; Powell v. Wytheville, 95 Va. 73, 27 S.E. 805; Scott v. New York, 27 A.D. 240, 50 N.Y.S. 191, 4 Am. Neg. Rep. 534; Donahoe v. Kansas City, 136 Mo. 657, 38 S.W. 571, 1 Am. Neg. Rep. 105; Oklahoma v. Hill Bros. 6 Okla. 114, 50 P. 242; Bunker v. Hudson, 122 Wis. 43, 99 N.W. 448; D'Amico v. Boston, 176 Mass. 599, 58 N.E. 158; Larson v. Grand Forks, 3 Dak. 307, 19 N.W. 414.
Sections 2703 and 2704 of the Revised Codes of North Dakota do not include, nor have they reference to, matters of injury to adjacent property caused by trespass. Notice of claim for damages against a city is not necessary unless made so by statute. 28 Cyc. 1447-1450, and cases cited; Giuricevic v. Tacoma, 57 Wash. 329, 28 L.R.A.(N.S.) 533, 106 P. 908; Tattan v. Detroit, 128 Mich. 650, 87 N.W. 894; MacDonald v. New York, 42 A.D. 263, 59 N.Y.S. 16.
The subject-matter of a statute limits its usage and application. Warren v. Davie, 43 Ohio St. 447, 3 N.E. 301; Sommers v. Marshfield, 90 Wis. 59, 62 N.W. 937; Bradley v. Eau Claire, 56 Wis. 168, 14 N.W. 10; Jung v. Stevens Point, 74 Wis. 547, 43 N.W. 513; Dawes v. Great Falls, 31 Mont. 9, 77 P. 309; Gallamore v. Olympia, 34 Wash. 379, 75 P. 978; Giuricevic v. Tacoma, 57 Wash. 329, 28 L.R.A.(N.S.) 533, 106 P. 908; Hughes v. Fond du Lac, 73 Wis. 380, 41 N.W. 407; Moran v. St. Paul, 54 Minn. 279, 56 N.W. 501; Pye v. Mankato, 38 Minn. 536, 38 N.W. 621; Dovey v. Plattsmouth, 52 Neb. 642, 73 N.W. 11; Fugere v. Cook, 27 R. I. 134, 60 A. 1067; Megins v. Duluth, 97 Minn. 23, 106 N.W. 89; McIntee v. Middletown, 80 A.D. 434, 81 N.Y.S. 124; Kelly v. Faribault, 95 Minn. 293, 104 N.W. 231; Postel v. Seattle, 41 Wash. 432, 83 P. 1025.
Lee Combs, L. S. B. Ritchie, and M. J. Englert, for respondent.
It is a prerequisite to the right to begin an action against a city to recover damages for injury to property, that the notice of the claim must be filed with the city auditor, and such fact must be pleaded and proved. O'Donnell v. New London, 113 Wis. 292, 89 N.W. 511.
Our statute relates to and covers all claims for damages against a city, and requires notice thereof, before suit. Foxworthy v. Hastings, 25 Neb. 133, 41 N.W. 132; Rev. Codes 1905, §§ 2703, 2704; 28 Cyc. 1470.
Failure to comply with the mandate of the statute as to notice is fatal to plaintiff's cause of action. 3 Abbott, Mun. Corp. pp. 2369 et seq.; 28 Cyc. 1472, and cases cited; Sharp v. Mauston, 92 Wis. 629, 66 N.W. 803; Flieth v. Wausau, 93 Wis. 446, 67 N.W. 731; Daniels v. Racine, 98 Wis. 649, 74 N.W. 553; Ziegler v. West Bend, 102 Wis. 17, 78 N.W. 164; Starling v. Bedford, 94 Iowa 194, 62 N.W. 674; O'Donnell v. New London, 113 Wis. 292, 89 N.W. 511; McCue v. Waupun, 96 Wis. 625, 71 N.W. 1054; Van Frachen v. Ft. Howard, 88 Wis. 570, 60 N.W. 1062; Pollard v. Cadillac, 133 Mich. 503, 95 N.W. 536; Trost v. Casselton, 8 N.D. 534, 79 N.W. 1071; Coleman v. Fargo, 8 N.D. 69, 76 N.W. 1051; Barrett v. Mobile, 129 Ala. 179, 87 Am. St. Rep. 54, 30 So. 36; Bancroft v. San Diego, 120 Cal. 432, 52 P. 712; Adams v. Modesto, 6 Cal. Unrep. 486, 61 P. 957.
FISK, J. BURKE, J., did not participate.
This is an appeal from an order of the district court of Barnes county, sustaining a demurrer to the plaintiff's complaint. The plaintiff seeks to recover damages from the defendant city for the alleged trespass by it, through its authorized agents and servants, upon his property, and committing injuries thereto.
It will not be necessary to set out the complaint in full, and we merely state the substance thereof, except as to the important paragraphs which we copy in full.
Plaintiff first alleges his ownership and possession of lots 6 to 12 inclusive of block 16 of the original plat of the city of Valley City; also the fact that defendant is and was a municipal corporation duly organized and existing under and by virtue of the laws of this state. It is next alleged that at all times herein mentioned there was situated upon lots 10, 11 and 12 aforesaid, a grain elevator owned and used by the plaintiff and his tenants for the purpose of buying and storing grain. Then follow paragraphs 4 to 6, inclusive, which we quote in full as follows:
IV.
"That on the 11th day of May, A. D. 1908, at a meeting of the city council of the said defendant city, held at its council rooms in said city, the said city council of said city of Valley City, for and on behalf of said defendant, did authorize its agents and officers to construct a sidewalk along the south line of the above-described premises, and thereafter and on the 2d day of August, A. D. 1909, the said council did authorize its agents and officers to remove a part of the premises of said plaintiff herein, claiming and setting forth that the same was an obstruction, and was constructed upon the street of said defendant."
V.
"That on or about the 15th day of October, A. D. 1909, defendant, through its duly appointed agent, unlawfully and wrongfully entered upon the premises of the said plaintiff, and did then and there destroy the property of the said plaintiff, to wit, the said grain elevator, in this that the defendant then and there caused to have torn down, cut off, detached, and removed from the said building a part thereof, and did cut off, remove, detach, and take away from the said building a part thereof; that said action on the part of the said defendant was without due authority of law, and to this plaintiff's damage in this that it destroyed the said building situated upon the said premises for all uses and purposes, and destroyed the same as a structure to his damage in the sum of $ 1,000."
VI.
"Plaintiff further alleges that said defendant entered upon his said premises, and committed the said damage to his said building solely upon the premises of this plaintiff, and that the building of the said plaintiff was built, constructed, erected, and maintained solely upon the premises of the plaintiff, but that, notwithstanding this, the defendant wrongfully and unlawfully entered upon his said premises and committed the damage hereinbefore set forth."
Paragraphs 7, 8, and 9 relate to special damages alleged to have been suffered on account of such alleged unlawful acts, and need not be set out herein.
Paragraph 10 is as follows:
"Plaintiff further alleges that all of said acts have been committed by the defendant, through its authorized agents and officials, by reason of the express authority given to the said agents and officials by the city council of the said city, and that the said agents and officials did act in full conformity to, and not in excess of, the said instructions given; and alleges that by reason of the said acts so authorized, that this plaintiff has been damaged as hereinbefore set forth; and in this behalf the plaintiff further alleges that all of the acts and steps were so taken by the said city without notice to said plaintiff."
In his prayer for judgment, plaintiff demands the sum of $ 5,790 and costs.
The ground of the demurrer is that it fails to state facts sufficient to constitute a cause of...
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