Tate v. City of St. Paul

• Decision Date: 17 February 1894
• Citation: 56 Minn. 527,58 N.W. 158
• Parties: TATE v. CITY OF ST. PAUL.
• Court: Minnesota Supreme Court

56 Minn. 527

58 N.W. 158

TATE

v.CITY OF ST. PAUL.

Supreme Court of Minnesota.

Feb. 17, 1894.

(Syllabus by the Court.)

In an action against a city to recover damages caused by a sewer, owing to insufficient size, setting back the water into plaintiff's cellar, the following charge approved: “Where a public work, for instance a sewer, as the same was originally planned and constructed, is found to result in direct and physical injury to the property of another, that would not otherwise have happened, and which, from its nature, is liable to be repeated and continuous, but is remediable by a change of plan or the adoption of prudent measures, the corporation is liable for such damages as may occur in consequence of the original cause, after notice and an omission to use ordinary care to remedy the evil.”

Appeal from district court, Ramsey county; Charles D. Kerr, Judge.

Action by William E. Tate against the city of St. Paul. Judgment was ordered for plaintiff, and defendant appeals. Affirmed.

Leon T. Chamberlain, for appellant.

John L. Townley, for respondent.

GILFILLAN, C. J.

The action is to recover damages arising from a sewer laid by defendant, and with which plaintiff had connected, as he had a right to do, setting the water in it back so that it flooded plaintiff's basements. The defect alleged in the sewer was that it was of insufficient capacity to carry off the water brought into it. The defect appears to have existed in the original plan for sewering that part of the city; that is, the city, in determining upon a system of sewers, determined upon the sizes required for the main sewer and for the lateral sewers running into it, and the size determined on for the former proved too small.

The rule is uniformly conceded that for injuries wholly incidental to and consequential upon the exercise by a municipal corporation of the legislative or discretionary powers intrusted to it (as distinguished from its ministerial acts) no action will lie against it. Instances of the application of that rule are furnished by Lee v. City of Minneapolis, 22 Minn. 13, where the power exercised was establishing the grade of a street under the charter, and Alden v. City of Minneapolis, 24 Minn. 254, where the city had established a system of grades for streets and sidewalks and drains, gutters, catch-basins, and sewers, and had constructed the streets, sidewalks, drains, and gutters, and partially completed the sewers. The complaint was that the sewers, drains, gutters, and catch-basins were not sufficient to carry off the surface water falling in rains upon the streets, so that it flowed from the streets upon plaintiff's lot. The line between legislative acts and ministerial acts of a municipal corporation is not very clearly marked by the decisions, nor is it necessary to attempt to trace it in this case. Some of the earlier cases do not clearly recognize the distinction between injuries incidental to the exercise of municipal legislative functions, and direct and positive wrongs-such, for instance, as trespass-caused by it. The later and better authorities, however, recognize the distinction, and, while adhering to the rule that for the former no action will lie, hold that for the latter the party may recover. The distinction is apparent, though it is not clearly discussed in either of the cases, of ...