St. Paul & Duluth Railroad Co. v. City of Duluth
| Decision Date | 10 February 1894 |
| Docket Number | 8533 |
| Citation | 58 N.W. 159,56 Minn. 494 |
| Parties | St. Paul & Duluth Railroad Co. v. City of Duluth |
| Court | Minnesota Supreme Court |
Argued January 25, 1894.
Appeal by defendant, the City of Duluth, from an order of the District Court of St. Louis County, J. D. Ensign, J., made September 23, 1893, denying its motion for a new trial.
Action brought by the St. Paul & Duluth Railroad Company to require the city to construct and continue its storm sewers underneath its railroad tracks to the Bay of Duluth and to restrain the City from so constructing new storm sewers as to empty their waters against its embankment built for its tracks along the shore of the bay. The facts are stated in the opinion. The issues were referred to J. L. Washburn Esq., to take the evidence and report the facts and his conclusions of law thereon. He heard evidence and reported the facts and his conclusion that the city should construct and continue its sewers to the Bay of Duluth and should not discharge the waters collected therein against the embankment of the plaintiff. The city moved for a new trial. Being denied it appeals.
For these reasons the order denying the motion for a new trial should be reversed.
H. F Greene, City Attorney, for appellant.
No one of the numerous decisions in Minnesota upon this class of cases ever went in favor of the party complaining of the intrusion of water, unless two facts were shown, First, that more water came upon his property than before the trespass or intrusion complained of, and second that there was a consequent injury which before the trespass or intrusion was not suffered. O'Brien v. City of St. Paul, 18 Minn. 176; Kobs v. City of Minneapolis, 22 Minn 159; O'Brien v. City of St. Paul, 25 Minn. 331; Hogenson v. St. Paul, M. & M. Ry. Co., 31 Minn. 224; Township of Blakely v. Devine, 36 Minn. 53; Pye v. Mankato, 36 Minn. 373; Follman v. City of Mankato, 45 Minn. 457.
This case is unique and is distinguished from every case decided in this state on the subject, in that in those cases it appears that the defendant cast the water on plaintiff's land, and that this act of defendant was manifestly the proximate cause of plaintiff's injury. It is not so in the case at bar.
This case also stands by itself, in that the injury complained of is entirely the result of the acts of the complaining party. The track of the St. Paul and Duluth Railroad Company was originally built on piles which allowed free egress for the discharge of these sewers. This has been changed to a solid dyke. No egress has been left for the waters of the city. This change has been made by the plaintiff. In making this change no egress is left even for the seven perennial streams which, as the referee finds, flowed into this marsh. The right of a municipality to do the acts here complained of are stated and illustrated in the following authorities. McClure v. City of Red Wing, 28 Minn. 186; Martin v. Riddle, 26 Pa. St. 415; Kauffman v Griesemer, 26 Pa. St. 407; Miller v. Laubach, 47 Pa. St. 154; Meixell v. Morgan, 149 Pa. St. 415; Dayton v. Drainage Com'rs, 128 Ill. 271; Lambert v. Alcorn, 144 Ill. 313; Johnson v Chicago, St. P. M. & O. Ry. Co., 80 Wis. 641; Jenkins v. Wilmington & W. R. Co., 110 N.C. 438; Jordan v. St. Paul, M. & M. Ry. Co., 42 Minn. 172; Collins v. City of Waltham, 151 Mass. 196; Turner v. Dartmouth, 13 Allen 291; Emery v. Lowell, 104 Mass. 13; Kennison v. Beverly, 146 Mass. 467; Parks v. City of Newburyport, 10 Gray 28.
Bunn & Hadley and J. D. Armstrong, for respondent.
These storm sewer pipes are partly of iron and partly of brick, or concrete. They vary in diameter from twenty four inches to six or eight feet. The longer of the sewers are about half a mile in length and have an elevation at the upper end of 350 feet above the lake. So that the city gathers these waters together as quickly as possible and discharges them in solid bodies through smooth pipes in large volumes with great velocity against the road bed of the plaintiff. While the aggregate volume of water draining from the land may not be increased, it is gathered together and concentrated and thrown down at fourteen points, while naturally it came down at almost an infinite number of points. This makes it plain that its destructive operation on the plaintiff's property is immensely increased by the storm sewage system of the city. The minimum territory is about twenty two acres and the maximum about sixty six acres draining into each sewer. The land is largely of a rocky character and impervious to water. After a storm the water is gathered and discharged by each sewer pipe in one solid mass against the embankment of the railroad company. These figures show better than argument how destructive the action of these waters must be and how clear it is that both the volume and velocity of the water reaching the railway property has been enormously increased and concentrated at particular points by these sewers.
It is obvious that somebody must carry the sewers to the lake. If the railroad company continues them simply through its own property they would then discharge against the property of the Chicago, St. P. M. & O. railway company and the improved property of other persons and corporations who would in their turn have the same cause of complaint against the plaintiff that it now has against the city. The result is, that if the city is right in its contention it is the obligation of every land owner between the St. Paul & Duluth tracks and the established dock line to pay for the extension of these sewers through his property. Successive private land owners will own and control successive sections of the sewers. They can never be brought under one ownership, control and management unless the city extends them to the lake, condemning if necessary the required right of way.
This case is controlled, we think, by a rule well settled in the law of this state which may be thus stated: One land owner cannot for the sole purpose of draining his own lands accumulate and gather the surface water coming thereon and discharge the same onto his neighbor's lands in large bodies or streams so as to do substantial injury.
Having mingled the stream and surface water and put the whole into artificial channels, into iron and concrete pipes, the burden was on the city to show that this water was the water of natural streams and that their works had not increased its destructive operation on plaintiff's property. This the city utterly failed to show, and it is probably true that even such a showing would not be a defense. Fletcher v. Smith, 2 App. Cas. 781. The plaintiff's property though originally low and marshy was as much the subject of ownership and improvement as any other land. Plaintiff had a right to improve it for railroad purposes, to raise and fill it up, to turn off the surface water from it. Brown v. Winona & S.W. Ry. Co., 53 Minn. 259. The city's rights are well settled to be the same as those of an upper land owner. O'Brien v. City of St. Paul, 25 Minn. 331.
The construction of ditches and pipes for the sole purpose of drainage, gathering water in streams or bodies solely to discharge it, and thus dumping it onto another's land, is actionable. Such works are not a reasonable and proper improvement of one's own premises. Hogenson v. St....
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